Abschagen v. Goldfarb , 8 A.D.2d 750 ( 1959 )

Appeal from an order of a Special Term, County Court, Albany County. As a life tenant of real property, plaintiff sues for damage to the property caused by the defendant as owner of adjoining premises. Plaintiff moved to bring in as a party plaintiff the owner of the remainder interest in the premises. The proposed additional party plaintiff expressly consented thus to be joined. The County Court denied the motion on the theory that a plaintiff in an action may not move under the practice to bring in an additional party plaintiff; but was of opinion that the proposed party could maintain a new action which thereafter could be consolidated with this action. It is demonstrated that both the present plaintiff and the proposed new plaintiff have an interest in the subject matter of the controversy at issue in the pending action. The clear procedural policy formulated by the Civil Practice Act is to allow such a joinder. New parties may be added “ as justice may require” (Civ. Prac. Act, § 192). All persons “may join in one action as plaintiffs” if they assert any right “arising out” of the same occurrence (Civ. Prac. Act, § 212). A joinder as plaintiff in a pending action by consent is clearly contemplated, since, for example, if “ consent ” to be a plaintiff “ cannot be obtained ” a party to be added may be made a defendant (Civ. Prac. Act, § 194). It is unnecessary in our view to decide whether the proposed new party is a “ conditionally necessary party ” within section 193 of the Civil Practice Act which was the stated ground upon which plaintiff moved to add the party. The pertinent ground shown by the record is the broad provision of section 192. Plaintiff’s motion asked for other and further proper relief. In our view, the firmly established policy of the practice expressed in the Civil Practice Act requires that the new party be added. (§§ 192, 212.) Order reversed and motion granted, with $10 costs. Bergan, J. P., Coon, Gibson and Reynolds, JJ., concur; Herlihy, J., dissents, in the following memorandum, and votes to affirm. There is no statutory authority for the procedure suggested by the majority. The New York Judicial Council in its 1946 (Twelfth Annual Report) Report, in recommending changes dealing with “ Parties ” at page 167 stated: “ The following recommendations deal solely with the addition of parties after an action has been commenced. ‘ Ordinarily, it is the right of a claimant to determine who the parties in a projected action shall be. Such right, however, is subject to the demands of an orderly administration of justice which avoids multiplicity of suits and inconsistent determinations. To avoid such multiplicity and inconsistency, section 193 [of the Civil Practice Act] makes provision for the bringing in, under varying circumstances, of parties whom the plaintiff did not include in the action.’ ” The fact that the Church signified by affidavits its willingness to be a party cannot be decisive as to the rights of the plaintiff to make it an additional party. The remedy is exclusive to the Church (Civ. Prac. Act, § 193-b, subd. 3), or at the election of the defendant (Civ. Prac. Act, § 193-e). That the suggested procedure herein simplifies the situation does not control or strengthen the position of the plaintiff when he had no authority to make the motion in the first instance. The order of the court below should be affirmed.