Flamm v. Perry

The right to move herein was not limited to a party to the action, hut any party in interest who was legitimately prejudiced by the judgment or by the proceeding thereunder might appeal to the discretion of the court. (Matter of Fuller v. Brown, 35 Hun, 162; Gould v. Mortimer, 26 How. Pr. 167, 168; American Ins. Company v. Oakley, 9 Paige, 259; United States Trust Co. v. N. Y., etc., Ry. Co., 6 Civ. Proc. Rep. 90, 94; De Betz's Petition, 9 Abb. N. C. 246, 252; Hackley v. Draper, 60 N. Y. 88; Goodell v. Harrington, 76 id. 547, 549.) But in this case the party in interest did not recover the judgments which constituted his lien until after the partition suit was begun and the Us pendens was filed. He had appeared before the referee, and had filed and proved his lien, which was allowed. He should not, therefore, be made a party on the ground that he was a necessary or proper party to the suit, or with a free hand to litigate those questions which have been or could have been properly heard and determined before the referee, and which are or could have been disposed of by his report and the entry of judgment thereupon. (Code Civ. Proc. §§ 1561, 1562, 1577, 1578.) In Deen v. Milne (113 N. Y. 303) the court say that American Ins. Company v. Oakley and Gould v. Mortimer (supra) proceed upon the assumed validity of the judgments, and in United States Trust Co. v. N. Y., etc., Ry. Co. (supra), Daniels, J., citing *606Gould v. Mortimer (supra), said that a party in interest, though not a party to the action, may apply to the court for that degree of protection which his interests require should be extended to him. The application is to the discretion of the court, and the learned Special Term evidently intended to provide only that Northridge might be heard as if afforded a hearing upon the coming up of the final order, inasmuch as the court would have denied the motion if the parties had consented to a rehearing, and, in effect, said that such rehearing was right for the reason that the provision for costs and disbursements in the final order destroyed the lien. Therefore, the order entered at most should have granted that for which general consent from the parties was not forthcoming, namely, a day in court for Northridge upon the settlement of the final order. I think that the learned Special Term could have limited the rights of Northridge, even though it had in terms'made him a party. It has even been held that in proceedings based upon section 452 of the Code of Civil Procedure this may be done. (Wall v. Beach, 20 App. Div. 480.) Not only should the order be thus modified, but it should limit the hearing lest it afford to Northridge a second day in court as to matters which were or could have been determined on the hearing before the referee, or the subsequent proceedings thereupon. I think that this court should not undertake to dispose of the merits upon this appeal, but should limit its decision to affirmance of the order that affords a rehearing. If the decree were improper or erroneous, it were better that the court which made it should pass upon it in the first instance. (Wilson v. Barney, 5 Hun, 257, 260.)

The order should be modified in accordance with this opinion, and, as modified, affirmed, without costs.

Goodrich, P. J., Bartlett, Woodward and Hirschberg, JJ., concurred.

Order modified in accordance with opinion of Jenks, J., as modified affirmed, without costs.