McCrorken v. Spiegel

Levy, J. The plaintiff instituted the action below in conversion. It appears that she delivered to the defendant Brauner a lady’s [497] coat for the purpose of having it cleaned. Brauner turned the coat over to Spiegel who conducted a cleaning and dyeing establishment in Queens. The coat was never returned to her and so she commenced action against both defendants. Brauner testified as a witness in her behalf, urging that the coat was never returned to him by Spiegel. In behalf of the latter the proofs were that every garment which Brauner had delivered to Spiegel had been duly returned. The trial court thereupon rendered judgment in behalf of the plaintiff against Brauner and in favor of Brauner for. the identical sum against Spiegel. It is from the latter feature of the judgment that the appeal was taken. It is argued in behalf of the appellant, not that the procedure was faulty, but that the court was without power to render any judgment as between defendants, and section 127 of the Municipal Court Code is thus relied upon. A reading of this provision indicates most unequivocally that the point is without merit; in fact, the diametric opposite will be found as its very wording confers jurisdiction upon the trial' court to do the very thing which it did in the premises. But even if this were not so, as indeed it is, it clearly appears that section 193 of the Civil Practice Act certainly admits of the right in the court to determine the controversy as between the parties before it as in the instant case. Furthermore, it authorizes the court to bring in a third person, not then a party to the action, who is or will be liable to any party originally named in the litigation wholly or in part for the claim made against the latter. Thus, this court has approved applications to implead eodefendants in situations precisely like the one here involved. (Bozzuffi v. Darrieusecq, 125 Misc. 178; Federal Lighterage Co., Inc., v. Italia-America S. Corp., Id. 181.) But the difficulty seems to lie in the point that has neither been raised below nor before us on this appeal, which has reference to the requirements of section 83 of the Municipal Court Code. There it is provided that when the judgment may determine the ultimate rights of two or more defendants as between themselves, “ * * * a defendant must demand such a determination in his answer, which must be in writing; and a copy of such answer must be served at least two days before trial, or at such other time as the court shall direct, * * (Italics ours.) It is not even pretended that compliance with this provision of statute has been made; at the same time were the point urged below, obviously, upon appropriate application, it would have been within the power of the court to direct that a suitable pleading in writing be served, and thus within its province to have cured the defect. In this [498] connection, it must be borne in mind that the trial court rendered judgment upon the conclusion of the trial and incidentally indicated some very brief views in support of its finding. Aside from a question of possible waiver, the appellant could at that time very easily have presented the objection to the procedure, but he did not do so. He later moved on papers to set aside the judgment and for a new trial, again having the opportunity of urging the point, but he likewise failed on this occasion. May we not assume, therefore, that he was' not concerned about raising the precise question? In any event, while having relation to a situation radically different from the one under consideration, we think the language of the Court of Appeals in Wood v. Duff-Gordon (222 N. Y. 88, 91) very appropriate here: “ The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view to-day.” So, feeling that the “ slip ” of the defendant Brauner in these circumstances is not fatal, and as the judgment of the court evidently goes to meet the demand for substantial justice, the judgment is affirmed, with twenty-five dollars costs. All concur; present, Bijxjr, O’Malley and Levy, JJ.