Bauer v. Dewey

Hatch, J.: This action was brought by the plaintiff as assignee of the claim of one Diamond to recover the sum of $2,500, which amount it is alleged in the complaint the defendant Dewey agreed to pay said Diamond as commission for services rendered by the latter as broker in effecting the exchange of certain real properties. Shortly after the appearance of the defendant in the action' the respondent Delack made a motion to intervene, alleging that he was entitled to one-half of the commissions owing by Dewey in .the transactions, his claim, as set forth in the affidavit, being that Diamond was working for and consummated said exchange for and in his behalf under an agreement that the commissions should be payable by both the parties making the aforesaid exchange to Diamond and Delack jointly [68] and equally. Dianaond admits that respondent has some interest in the commissions. The court below granted the motion of Delack to be permitted to intervene, and from such order this appeal is taken. : The application is made pursuant, to the 2d clause of section 452 of the Code of Civil Procedure, which provides that, “ And where a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected hy the judgment, and makes application to the court to be made a party $ it must direct him to be brought in by the proper amendment.” It is contended by the appellant that this provision limits ■ the right to intervene in common-law actions to cases in which the party has an interest in specific property which is the subject of the action and which may be affected by the judgment. Several authorities are cited by counsel in support of this proposition, but reliance is mainly placed upon the decision in Chapman v. Forbes (123 N. Y. 532). It is true that that case was in its nature somewhat similar to this. It was an action at law for money had and received. The defendant denied the indebtedness, and alleged that the money in question belonged, subject to certain equities in himself, to the assignee of the persons who had deposited it with. him. The similarity goes no further, and- a careful reading of the opinion, we think, leads to the conclusion that the case does' not go to the extent claimed for it by the appellant. There is a lengthy discussion of the provisions of the Code contained in section- 452, and the case holds that the facts did not and could not come within the provision of the 1st clause of the section, because the action was at law, and the result would be to convert a plain action at law into one in equity. That leave could not be granted under the 2d clause, because the application was made by the defendant himself, and the statute requires that it shall be made by the party seeking .to intervene. The first part of section 452 is a re-enactment of section 122 of the Code of Procedure, and applies only to equity actions, but the 2d clause-hereinbefore quoted applies to actions at law. Any doubt which might be entertained as to what was intended by the decision in Chapman v. Forbes (supra) is set at rest by the ojnnion in Rosenberg v. Salomon (144 N. Y. 92). In commenting upon. [69] and distinguishing that case the court says:. “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 section 452 of the Code. So much of that section as is a literal re-enactment of the old section 122 applies only to equitable actions. We so held in Chapman v. Forbes (123 N. Y. 532), but did not extend that construction to the new and added provision of section 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.” If the effect of the order allowing intervention was to change the character of the action from an action at law into one in equity, we should hesitate to affirm an order in such case, as we think it would be in conflict with the policy of the law and with the reasoning in Ghapman v. Forbes (supra); but where, as in this case, the character of the action is not changed, and the application is made by the party seeking to intervene, we do not think the right is limited to a case where specific property is the subject of the action, but may embrace an action for money as well. And this court has twice distinctly so held in Merchants’ Nat. Bank v. Hagemeyer (4 App. Div. 52) and Montague v. Jewelers & Tradesmens Co. (44 id. 224). In the latter case Mr. Justice O’Brien, writing the opinion, discusses the cases of Chapman v. Forbes and Rosenberg v. Salomon (supra) and evidently limits the application of the former as we do here. It is there said that the contention that section 452 of the Code of Civil Procedure applies in actions at law only to those actions which' have for their subject the title to some specific property, and not to the recovery of a sum of money, was disposed of by this court in the case of Merchants' Nat. Bank v. Hagemeyer (4 App. Div. 52). We think the respondent Delack has shown such an interest in the subject of this action as entitles him to intervene. For the reasons stated, the order appealed from should be affirmed, with ten dollars costs and disbursements to the respondents. Patterson and O’Brien, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented.