Britton v. Bohde — 66 N.Y. St. Rep. 162

Majority

p. 162

Charles F. Britton, Resp’t, v. Angeline Bohde, Def't. New York Building Loan Banking Company, App’lt.

(Supreme Court, General Term, Second Department,

Filed March 5, 1895.)

Headnote

Parties—Intervention.

In an action at law for the recovery of an indebtedness from defendant to plaintiff, the fact that another party claims such demand, does not entitle him to intervene.

Appeal from an order denying an application to be made a party defendant.

Booraem, Hamilton, Bickett & Ransom (William H. Hamilton and Henry R. Richards, of counsel), for app’lt New York Building Loan Banking Company ; Frank M. Buck, for resp’ts.

This is an appeal from an order of the city court of Mount Vernon denying the application of the appellant to be made a defendant in the actioa The action is to recover the sum of $800, alleged to be due from the defendant on account of a, mortgage executed by the plaintiff to her. The appellant seeks to intervene on the ground that this sum of money really belongs to it. We think that this fact, if true, gave the appellant no right to intervene. If the plaintiff is not the owner of the claim, he will be defeated in this action. But, even if he should wrongly succeed therein, the appellant will nowise be injured. If it has a valid claim against the defendant, it may sue for it, and the recovery in this action will nowise bar its claim. This action is an action at law, and it is settled by authority that in such actions the plaintiff has the privilege of determining what parties he will proceed against, and that other parties cannot intrude themselves into the action against his will. Chapman v. Forbes, 123 N. Y. 532 ; 34 St. Rep. 353 . The order appealed from should be affirmed, with $10 costs and disbursements.

All cuncur.

Cases cited

Chapman v. Forbes 123 N. Y. 532 N.Y. 1890-12-02 p. 162