Schnaier v. Schmidt — 37 N.Y. St. Rep. 641

Majority

p. 641

Gustav Schnaier et al., Resp’ts, v. Konrad Schmidt et al., App’lts.

(Supreme Court, General Term, First Department,

Filed March 13, 1891.)

Headnote

Parties—Refusal of member of firm to join in- bringing action.

Where a member of a firm refuses to join with the other members as plaintiffs in an action brought by such firm, and is therefore made a defendant, such refusal fully determines his relation to the controversy, and his right to become a plaintiff is lost by his own conduct, and cannot afterwards be insisted upon.

Appeal from an order denying a motion to add the name of Konrad Schmidt as one of the plaintiffs in the action.

J. George Flammer, for app’lts; Abram Kling, for resp’ts.

The motion seems to have been made upon the The allegation contained in the plaintiffs’ complaint that Schmidt was a member of the plaintiffs’ firm. But, assuming that to be the fact, still the defendants had no right, after the trial of the action and its determination, to require that Schmidt should be made a party plaintiff in the suit. For it appeared by the complaint that he had refused to be joined with the other plaintiffs as a party, and on account of that refusal had been made a defendant. This practice has been fully provided for by § 448 of the Code of Civil Procedure, and made the action as to parties entirely regular. That refusal fully determined his relation to the controversy, and the action afterwards regularly progressed to a trial and judgment with him only as a defendant. His right to become a plaintiff had been lost by his own conduct, and it could not afterwards be insisted upon as it was in support of this motion. The order was right, and it should be affirmed, with ten dollars costs, and also the disbursements.

Van Brunt, P. J, concurs.