Gittleman v. Feltman

• Decision Date: 25 February 1908
• Citation: 83 N.E. 969,191 N.Y. 205
• Parties: GITTLEMAN v. FELTMAN et al.
• Court: New York Court of Appeals Court of Appeals

191 N.Y. 205

83 N.E. 969

GITTLEMAN

v.FELTMAN et al.

Court of Appeals of New York.

Feb. 25, 1908.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Eva Gittleman against Charles L. Feltman and others. Appeal from an order of the Appellate Division (122 App. Div. 385,106 N. Y. Supp. 839) affirming an order granting leave to plaintiff to amend the summons and complaint by bringing in a new defendant. Affirmed.

Joseph M. Gazzam, Jr., and Darwin J. Meserole, for appellants.

John H. Regan and Samuel L. Frankenstein, for respondent.

HAIGHT, J.

This action was originally brought against Charles L. and Alfred Feltman to recover damages for a personal injury alleged to have been received by reason of the negligence of the defendants. The order appealed from permitted the plaintiff to bring in as an additional defendant the Surf Amusement Company, a corporation, which it is claimed was a joint tort-feasor with the other defendants, and with them liable for the damages sustained by the plaintiff. It is the contention of the appellants that the court had no power to make such an order in an action of this character. The Appellate Divisions of the state appear to be in conflict upon the question. Heffern v. Hunt, 8 App. Div. 585,40 N. Y. Supp. 914;Schun v. Brooklyn H. R. R. Co., 82 App. Div. 560,81 N. Y. Supp. 859;Goldstein v. Shapiro, 85 App. Div. 83,82 N. Y. Supp. 1038;Horan v. Bruning, 116 App. Div. 482,101 N. Y. Supp. 986;Haskell v. Moran, 118 App. Div. 810,103 N. Y. Supp. 667. The provisions of the Code of Civil Procedure bearing upon the question are as follows:

‘Section 452. The court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in. And where a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, or in real property for injury to which the complaint demands relief, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment.’

‘Section 723. The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading, or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case,’ etc.

The rule of the common law that a statute in derogation of the common law must be strictly construed does not apply to the provisions of the Code of Civil Procedure. Section 3345. We are therefore called upon the give to the provisions referred to a fair and reasonable construction in accordance with the evident intent of the Legislature. Undoubtedly the first subdivision of section 452, as originally enacted in section 122 of the Code of Procedure, had reference and pertained to equity actions; but when the Legislature subsequently added the second subdivision to the section permitting a person, not a party, who has an interest in the subject of the action, or in real property, the title to which may be affected by the judgment, to make application to be made a party, and to be brought in by a proper amendment, it evidently intended, at least so far as that subdivision of the section was concerned, to apply to actions at law as well as in equity. This was expressly held in Rosenberg v. Salomon, 144 N. Y. 92, 38 N. E. 982, but, inasmuch as this provision of the Code pertains to the application of persons to be brought in and made parties to the action, it does not apply to the case which we have under consideration. We must therefore look to the provisions of section 723 for the purpose of determining the rights of the parties in this case. It will be observed that the provisions are very broad, and cover precisely the question presented. The court may at any stage of the action, in furtherance of justice, on such terms as it deems just, amend any process or pleading by adding or striking out the name of a person as a party. There is nothing in the...