Opinion
May 4, 1959
Molloy Fletcher for plaintiff.
Henry W. Steingarten for defendant.
Marvin Usdin for intervenor.
Motion by Advance Insulation Co. Inc., a judgment creditor of the plaintiff for leave to intervene in the above-entitled action denied.
Pursuant to section 687-a of the Civil Practice Act (subd. 6) a judgment creditor may, upon presenting the court with proof that a party is indebted to the judgment debtor, be permitted to maintain an action against such party. That section does not authorize intervention in an existing action between the judgment debtor and the third party.
Section 193-b of the Civil Practice Act relates to intervention in existing actions but the situation disclosed by the motion papers neither supports an absolute right of intervention under subdivision 1 nor facts permitting the court to grant intervention in the exercise of its discretion under subdivision 2. There is no fund in the custody of the court or an officer thereof which would support intervention by one who would be adversely affected by the distribution of said fund and there is no statute authorizing the court to grant intervention.
Moreover, absent any proof of indebtedness sufficient to obtain permission to maintain a separate action under section 687-a or that the judgment debtor is not prosecuting the action with due diligence, the court would not grant the application if it had the discretionary power to permit intervention under section 193-b.