Schuyler v. Schlicht — 44 N.Y. St. Rep. 574

Majority

p. 574

Frank D. Schuyler, Resp’t, v. Josephine M. Schlicht, Impl’d, App’lt.

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

Pasties—Additional.

A person who claims to have some interest in or to the subject matter of. an action is a proper, although not a necessary party, and may be brought in to have his rights ascertained and defined.

" Appeal from interlocutory judgment and order overruling^ demurrer to supplementary complaint.

Waldo G. Morse, for app’lt; Henry W. Bean, for resp’t.

The record in this case is very unsatisfactory,, for the reason that we cannot ascertain from it how the supplemental complaint comes into the action as a pleading. Whether it is introduced by consent or by order of the court, and if the latter why or for what reasons it was allowed to be served we cannot tell. We are left to surmise as to that. But taking up. the record as it comes to us we find that the defendant, Josephine M. Schlicht, has demurred to a supplemental complaint, and her demurrer was overruled in the court below. Nothing was brought up for consideration on that demurrer except the sufficiency of the supplemental complaint. The appeal book consists of a complaint, supplemental summons, what is called a supplemental complaint and a demurrer to that supplemental complaint, the decision of the judge on the demurrer, the- order overruling it and the interlocutory judgment Prefixed to these records is a statement

p. 575

of the case, and from that alone do we learn that the defendant, Josephine M. Schlicht, was brought in as a defendant and was ■served with a supplemental summons and complaint. Her demurrer applies only to that supplemental complaint.

That the demurrer was properly overruled is evident. We may assume that under § 544 of the Code of Civil Procedure the supplemental complaint is in proper form and is in addition to the ■original complaint, but the present demurrer does not apply to the original complaint, but only to what is added by the so-called supplemental complaint, and that is that the demurrant claimseto have some interest in or to the proceeds of the joint enterprise of the plaintiff and Paul J. Schlicht It is quite clear that the de.murring defendant was therefore brought- in to have her rights ascertained and defined, if she had any. She may not have been a necessary party to the action, but she was a proper party, and the courts have so often passed upon the question of bringing in proper parties where substantial rights are in controversy that it is unnecessary to say anything further on that subject. If any .authority is wanted it may be found in Towsend v. Bogert, 126 N. Y., 370 ; 37 St. Rep., 488 .

The interlocutory order and judgment appealed from are .affirmed, with costs.

Van Brunt, P. J, and O’Brien, J., concur.