Barwin Realty Co. v. H. Batterman Co.

Stapleton, J.: In an action to recover real property an order was made directing that the action be continued against one of the defendants and that the summons and complaint he amended by eliminating from the suit other defendants named therein. This motion for the relief was made by the defendants and opposed by the plaintiff. In an action in equity, begun in the United States District Court for the Eastern District of New York, the defendants eliminated were appointed receivers of the* defendant corporation retained in the action at bar. It appears by supplemental answers that during the pendency of the action at bar the receivers were discharged and all the property of the corporate defendant was, by direction of the United States court, turned over by the receivers to the corporate defendant. If these allegations constitute a defense by way of avoidance, they are deemed controverted. ■ (Code Civ. Proc § 522.) It appears by the answering affidavits that the discharge of the receivers was provisional, not absolute. We are aware of no principle of law or rule of procedure which would authorize any court, against the will of the plaintiff, ■ to strike from the record the name of, and exclude from an action the person of, a necessary defendant. (Ross v. Wigg, 100 N. Y. 243, 246.) The defendants rely upon section 156 of the Code of Civil Procedure. It reads: “ § 756. Proceedings upon transfer of interest, or devolution of liability. In case of a transfer of interest, or devolution of liability, the action may be continued, by or against the original party; unless the court directs the person, to whom the interest is transferred, or upon whom the liability is devolved, to be substituted in the action, or joined with the original party, as the case requires.” [417] The order under review did not substitute or join a proper defendant; it removed a necessary party. The complaint demanded judgment for immediate possession of property actually occupied, and alleged that the excluded defendants were occupants. They were necessary defendants. (Code Civ. Proc. § 1502.) Plaintiff also, on proper allegations, demanded damages against those defendants for wrongfully withholding the property: It is not clear that there is a “ devolution of liability ” of the excluded defendants upon the corporate defendant, or, if there be a devolution, that it is complete. Questions of law certainly, and questions of fact probably, are presented which the plaintiff is entitled to'have disposed of upon the trial of an action to which the receivers are parties. (See Prouty v. Lake Shore & Mich. S. R. Co., 52 N. Y. 363, 368; Banks v. Maher, 15 N. Y. Super. Ct. 690, 692.) Section 756 of the Code of Civil Procedure does not apply. The order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Jerks, P. J., Cabe, Mills and Putnam, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.