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Cohen v. Lane

21 N.Y. St. Rep. 273 Court N.Y. Gen. Term Decision date 1889-01-28 English

Delivered by Van Brunt, P. J.

Contents

Majority

p. 273
Byron W. Cohen v. Augustus R. Lane.
(Supreme Court, General Term First Department,
Filed January 28, 1889.)

Headnote

Practice—Joinder oe defendants.
An application by a defendant to have a party joined as a defendant is properly denied, if his presence is not necessary for the complete determination of the matters in controversy in this action.
Appeal by the defendant, James M. Hill, from an order of special term, denying his motion for an order that one Andrew Dam, Jr., be made a party defendant.
Simon Fleishman, for app’lt; J. M. Townsend, Jr., for resp’t.

The defendant Hill having intruded into an action in which his company does not seem to have-been wanted, now proposes to drag in another defendant, in order that he may indulge in some litigation with him at the expense of the plaintiff.

The ground upon which he claims that the defendant Dam should be brought in seems to be that there is a defense to the mortgage which is sought to be foreclosed, and that the said Dam, and not the plaintiff, is the real party in interest. Whatever defenses there may be to the-mortgage exist as well against the plaintiff, whether the-proposed defendant Dam is brought in or not. Therefore, for the establishment of such defenses Dam is not a necessary party. Neither is he a necessary party to the controversy as to who is the real party in interest.

It is urged that Dam should be compelled to meet that allegation. It seems to us that it is for the allegator to prove the truth of bis allegation as against the plaintiff, and if he does, he will succeed Dam in or Dam out.

There, therefore, seems to be no reason why Dam should be brought in by the plaintiff as a complete settlement of

p. 274
the plaintiff’s rights can be had without his presence, and the defendant Hill,can assert any rights which he may have as against this foreclosure, whether Dam is a defendant or not.

The order should be affirmed, with ten dollars costs and disbursements.

Daniels and Brady, JJ., concur.