Douglas v. Smith , 50 N.Y. St. Rep. 808 ( 1893 )

FOLLETT, J.

Bierman v. Hake, 42 Hun, 542, was brought by creditors to compel an assignee for their benefit to account. After issue joined, a referee was appointed to take and state the account of the assignee, and ascertain amounts owing to all of the creditors of the assign- or. Subsequently certain creditors moved'that they be made parties' plaintiff to the action, but their motion was denied, on the ground that their presence as plaintiffs was unnecessary, because they had the right to appear before the referee, prove their claims, and protect their rights, as fully as though they were parties to the action. But it is said, as a reason for the present motion, that the plaintiff has become unwilling to compel the accounting to proceed. The answer to this is that any of the creditors who have appeared or may appear and become parties to the accounting have the same right to prosecute it and bring it to a close as have the parties to the action.- It is also said in behalf of the moving creditors that they have reason to fear that the plaintiff will settle and discontinue the action,. and so put an end to the accounting. - This fear, we think, is groundless, for it may be the court would find a valid reason for refusing to permit an order of discontinuance to be entered in such an action, especially where all parties to it ask in their -pleadings for a full accounting for the benefit of all' the creditors. Should the parties to the action assume to settle it, and enter an order without leave of the court, and without giving all the creditors who had appeared on the. accounting an opportunity to be heard, it would undoubtedly be vacated. The order in this case seems to be defective, in failing to provide that the new parties be brought into the action by an appropriate amendment to the complaint. The moving creditors do not ask to come in as plaintiffs, and be represented by the attorney for the present plaintiff, but apparently wish to have their interests prosecuted by their own attorney. We know of no precedent for bringing into an action several plaintiffs with the right to appear by separate attorneys. . We think that the part of the order directing that these creditors be brought in as plaintiffs cannot be sustained. But we see no objection to the other provision from which an appeal is taken. The right of the court to finally charge the costs upon those who ought to pay them is not interfered with, and the provision was simply intended to secure, in any event, the payment of the fees and disbursements of the referee. That part of the order directing that the respondents be brought into the action as parties plaintiff is reversed, and that part of the motion denied; but in all other respects the order is affirmed, without costs to either party.