Thomson v. Fairfield , 50 N.Y. St. Rep. 472 ( 1893 )

VAN BRUNT, P. J.

This action was brought against the appellant Fairfield and others for the purpose of determining the validity, priority, and extent of the claims of the respective defendants in certain judgments obtained in this court. The appellant Fairfield duly answered, as also certain other of the defendants. Thereupon the plaintiffs, upon an affidavit stating that the action was in the nature of a bill of interpleader, brought to compel the defendants to determine their respective rights, as between themselves, to a fund of upwards of $3,000-deposited by the plaintiffs with the clerk of this court to the credit of, this action; that issues had been joined in the action; and that, while-there was no substantial dispute between the defendants and the plaintiffs, the trial of the cause would necessarily involve the rights of certain of the defendants upon the one side, and the appellant upon the-other, and that difficult questions of law would not arise, and that all the parties except the defendant Fairfield would probably join in the-application .upon the return day of the motion for a reference; and that inasmuch as Fairfield had been superseded by one Welch, receiver, upon supplementary proceedings instituted upon a judgment,recovered against him, which receiver had been substituted in the place-of Fairfield as defendant, any objection in behalf of Fairfield, in view of the circumstances, would not address itself to the court with much force or weight,—gave notice of motion for a reference of the issues. Such notice of motion was duly served upon the defendant Fairfield, who appeared upon the return day of the motion, and opposed the application for a reference. Notwithstanding such opposition, the motion, was granted., and from the order thereupon entered, referring the issues, in such case, this appeal is taken.

It is now objected that the appellant has no standing in court, because he had no interest in the action, and therefore has no standing; to dispute the validity of the order of reference. Whatever might, have been said as to this proposition, had the facts been different, I am of the opinion that, having thought it necessary to serve their-notice of motion upon Fairfield, having considered him as a party to-the action, and he having appeared and opposed the motion, there seems to be no reason now why he should be shut out from the rights-which it is admitted, upon the part of the' plaintiff; that he had. It' is by no means certain that, because of the appointment of a receiver-of Fairfield’s property, he had lost -all interest in the result of this-action. He was largely interestéd in seeing that his claim against the fund, which formed the subject-matter of this action, was properly prosecuted, in order that it might realize as large a sum as possible-for his creditors. There was no order striking him from the record, and, as already stated, he was treated as a party; and, having been, called in by the plaintiffs, they certainly cannot complain if the appellant pursues his legal rights. Very much of the-respondents’ argument is taken up with a statement of points arising from assumed facts,, not one of which appears upon the record, which is the only source of' information in regard to the legal status of the parties that the court can. take cognizance of. It seems to be clear that the action is not referable, as a matter of right, and therefore the appellant, Fairfield, has a right, to a reversal of the order.

The order should be reversed, with $10 costs and disbursements.