Opinion
May 28, 1963
Order, entered on September 7, 1960, unanimously modified on the law and in the exercise of discretion so as to provide for the dismissal of the second affirmative defense and counterclaim only as against defendants, White House Beef Co., Inc., and Siegfried Seligman, and as so modified, affirmed, wtihout costs. The defendant Zoloto, by what is incorrectly denominated a counterclaim, brings into the action as parties defendant White House Beef Co., Inc., and Siegfried Seligman. That he may not do. These defendants were originally parties plaintiff who, after the payment of their claims by New York Central Railroad, moved to discontinue the action in their behalf. That motion was granted, over Zoloto's objection, and the appeal taken from the order entered thereon was ultimately dismissed. It has thus been adjudicated that the presence in this action of these defendants is not necessary, and Zoloto is bound thereby. He may not now by indirection accomplish that which has been foreclosed to him. In any event it is clear from the record in connection with the application for discontinuance that these defendants have expressly renounced any interest in the fee fund retained by New York Central. Even without the presence of these defendants a declaration in this action in favor of either of the contending attorneys would be an adjudication unassailable by any of the parties concerned. Thus, the "counterclaim" as to them must be dismissed. However, inasmuch as Zoloto asserts a right to the fund, and by way of the counterclaim seeks a declaration to that effect, that portion of the counterclaim should be permitted to stand.
Concur — Rabin, J.P., McNally, Stevens, Steuer and Bastow, JJ.