Opinion
Argued February 27, 1917
Decided March 6, 1917
John P. Kellas for appellant.
George E. Van Kennen and W.O. Daniels for respondent.
This is an action for trespass. The complaint demands judgment for a sum of money only. Plaintiff and defendant both claim title to the lands. The defendant claims to have acquired the title of respondent's testator with covenants of warranty and quiet enjoyment. Respondent has been notified to defend the action.
In an action at law where the plaintiff seeks a money judgment only, he cannot be compelled under section 452 of the Code of Civil Procedure to bring in as a defendant a third party on the application of the latter. ( Bauer v. Dewey, 166 N.Y. 402; Garrigues Co. v. Casualty Co. of America, 220 N.Y. 588.)
The subject of this action is the alleged trespass. Respondent has no title to or interest in the property, real or personal, described in the complaint which can be affected by the judgment, and, therefore, no interest in the subject of the action. She may be interested in or affected by the result but that is not enough. The plaintiff has no interest in the possible claim of the defendant against the respondent. If it makes her party to this action it cannot state a cause of action against her or obtain any relief against her.
The order of the Appellate Division should be reversed and the order of the Special Term affirmed, with costs in this court and in the Appellate Division, and the question certified answered in the negative.
HISCOCK, Ch. J., CHASE, CUDDEBACK, HOGAN, POUND, McLAUGHLIN and ANDREWS, JJ., concur.
Order reversed, etc.