Summary
In Ten Eyck v. Keller (99 App. Div. 106) the Appellate Division in the third department held in an action for conversion that the court could not on the plaintiff's own motion, under section 452 of the Code of Civil Procedure, bring in a third party in whom defendant alleged title.
Summary of this case from Haskell v. MoranOpinion
November, 1904.
Walter S. Logan and Lynn C. Norris, for the appellants.
H.D. Bailey, for the respondent.
The plaintiff brought action against defendant Keller for conversion of certain theatre chairs. He answered, denying the conversion and pleading title in one Idene Dayton Denison, his landlord, from whom he had rented the property in dispute. Thereupon the plaintiff moved to make Denison a party defendant and for leave to serve a supplemental summons and an amended complaint. Such order was made, and both the new and the old defendant appeal.
The order was unauthorized and must be reversed. The action is purely one at law for a wrong. The complaint does not ask that the title to the property in question shall be determined. It alleges ownership in plaintiff and wrongful taking and detention by defendant Keller, and demands damages therefor. The defendant's plea of title in another does not change the plaintiff's rights. Under a general denial in such an action, the defendant could show title in a stranger. ( Siedenbach v. Riley, 111 N.Y. 560.) In an action at law where a money judgment alone is sought, a plaintiff can neither be compelled nor permitted, under the provisions of section 452 of the Code of Civil Procedure, to bring in other parties than those he chose originally to make defendants. ( Chapman v. Forbes, 123 N.Y. 532; Heffern v. Hunt, 8 App. Div. 585.) The provisions of that section of the Code as to bringing in additional parties relate only to equitable actions. ( Goldstein v. Shapiro, 85 App. Div. 83; Rosenberg v. Salomon, 144 N.Y. 92; American Trust Sav. Bank v. Thalheimer, 29 App. Div. 170.) The latter part of the section permits a third person having an interest in the subject of the controversy to himself apply to come in and litigate; and if the court deems it proper for him to do so, neither the plaintiff nor the defendant can prevent his being added as a party defendant. But he cannot be compelled to come in and defend against his will.
If the plaintiff in an action at law for the recovery of a money judgment has chosen the wrong defendant, he must withdraw and sue the proper one; for he cannot be permitted to gather in parties at will after he has begun his action.
The order should be reversed, with ten dollars costs and disbursements.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.