Rosenberg v. Salomon

We agree with the general term in its affirmance of the order granting the application of Solomon & Wolf to intervene as parties defendant; although we put our concurrence not upon the ground of an inherent power in the court, but upon the express permission of § 452 of the Code. So much of that section as is a literal re-enactment of the old § 122 applies only to equitable actions. We so held in Chapman v. Forbes, 123 N. Y. 532 ; 34 St. Rep. 351 , but did not extend that construction to the new and added provision of § 452, which in terms permits persons not made defendants on their own application to come in and defend when they have an interest in the subject of the action the title to which may be affected by the judgment. On the contrary, we cited the case of People v. Albany & Vermont R. R. Co., 77 N. Y. 232 , which was a legal action in the nature of a quo warranta to forfeit a corporate charter, and which did not hesitate to apply the new provision of § 452. We met that by showing that it operated only where persons not sued made the application in their own behalf, and not to a motion to compel the plaintiff to bring in other parties, which was the question then at issue. Here the plaintiff has brought replevin against the sheriff. The latter took the property by virtue of an execution against Salomon & Wolf, and can defend only upon their title. The plaintiff claims that the levy was upon his property and must show title as against that of the judgment debtors. They have an interest in the subject of the action, first, to have their property go in discharge of their own debt, and next to save and retain any possible surplus beyond, and it is their title which is involved.

We think, therefore, that the power to make this order was given by the Code, and it should be affirmed, with costs.

All concur. Order affirmed.