Russ v. Stratton , 59 N.Y. St. Rep. 384 ( 1894 )

Dugro, J.

The respondent was not entitled to be made a defendant by virtue of § 452 of the Code of Civil Procedure. The subject of the-action is the real property, and in this the respondent has no interest. Its interest is only in the question involved in the action, and this is not the interest to which § 452 refers; a consequential interest will not suffice. Barb. Parties, 488.

The special term had power to direct the respondent to be made a defendant, though not required to do so by the Code provision. White's Bank of Buffalo v. Farthing, 101 N. Y. 344; 1 St. Rep. 15. But naturally this power ought not to have been exercised except for sufficient reason ; the papers disclpse none. There is no charge of misconduct against the insured, nor does there appear to be any reason to doubt that the respondent will have a fair opportunity to protect its interest without being a defendant. Under the circumstances the motion should not have been granted. Davies v. Fish, 47 Hun, 314; 13 St. Rep. 554.

Sedgwick, Oh. J. and G-ildersleeve, J., concur.

Order reversed, with ten dollars costs and disbursements.