Argued January 19, 1882
Decided January 31, 1882
Charles Jones for appellant.
D. Mitchell for respondents.
It is now objected by the appellant that the referee erred in deciding that the defendant Sunderland was entitled to recover, and in directing judgment in his favor. The point was pressed with much earnestness, but, as it seems to me, is founded upon a misconception as to the nature of the action, and the power of the court having the facts before it to adjust the rights, not only between the plaintiff and defendants but as between co-defendants. It should be observed the action is not, as the appellant assumes, a mere common-law action, seeking judgment for a sum of money and no other relief. The plaintiff also sought to extinguish an adverse or hostile claim to that money; to have determined, not only the amount due from Lee, but the party to whom it should be paid. To reach this she introduced no issue to the delay or detriment of the appellant. If the claim of Sunderland had not been stated the defendant would, upon the evidence, have had a right to require the alleged assignee to be made a party in order that he might be protected from another suit. The plaintiff had the same right in order that no subsequent litigation should be necessary between her and the assignee. By the course taken, both parties are protected. The judgment has involved no issue between the defendants, but has been based upon facts, disclosed in making out the cause of action. Each party answered to it, and without the presence of Sunderland, there could have been no final determination of the rights of the parties. Before trial Lee had been notified by Sunderland of the assignment. The plaintiff knew of it. Each, therefore, would have been subject to fresh suit by him; the plaintiff for the money recovered; the defendant for paying it over after notice. It was in equity a general rule, that all persons interested in the subject of the suit should be made parties either as plaintiffs or defendants, in order to prevent a multiplicity of suits, and secure a final determination of their rights. (Story's Eq. Plead., § 72.) The provisions of our Code are not in derogation of this principle, but apply it to all actions where the controversy can be ended by one hearing and adjudication. (§§ 446, 447, 452.) The first section permits all persons having an interest in the subject of the action and in obtaining the judgment demanded, to be joined as plaintiffs, except in certain prescribed cases; the next allows any person to be made a defendant, who has, or claims an interest in the controversy, adverse to the plaintiff, or whose presence is necessary for a complete determination of a question involved therein, while the last requires the court to direct such other parties to be brought in. The case is within the spirit and meaning of these provisions. Whether the application to bring in Sunderland was made by the plaintiff, or by Sunderland, does not appear. It might have been by either, and it would be enough if the defendant already before the court had such an interest in having Sunderland made a party, as to authorize an objection to proceeding without him. (2 Paige, 278.) The plaintiff's rights depend upon the extent of Sunderland's interest under the assignment of her intestate, and the defendant's liability to her upon the same question. Moreover, the judgment is within the provisions of section 274 of the former Code, and section 1204 of the new. It determines the ultimate rights of the parties as between themselves, as they arise from the claim set up by the plaintiff, and this is allowable under a strict construction of those statutes.
The appellant also objects, that the evidence adduced was insufficient to make out a cause of action. I have examined the evidence and find that it is conflicting. It was for the referee to determine as to the credibility of the various witnesses, and the weight of proof presented by either party. He accepted that of the plaintiff, and the General Term agrees with him in the estimate put upon it. Their conclusion cannot be disturbed by us, for there is testimony in its support. It is also objected that a certain extract from the book of the New Haven, Middletown and Willimantic Railroad Company was improperly admitted. It is not necessary to determine whether the case made for its admission was sufficient, under the Code as it now stands (§§ 929, 930, 931). I think there is doubt about it. But as evidence, it was not material. The facts embraced in it had been otherwise established — indeed, were not controverted. There are other exceptions, especially to the declarations of Dolan, and an argument has been made to show that evidence of that character is to be received with caution, and is usually unreliable. We think they were admissible, and their weight was for the referee. If these views are correct, the case was properly disposed of, and the result reached by the referee should not be disturbed.
The judgment appealed from should, therefore, be affirmed.
ANDREWS, Ch. J., RAPALLO and MILLER, JJ., concur; EARL, FINCH and TRACY, JJ., dissent.