Kirsch v. 33 West 56th Street, Inc.

This is a motion to compel plaintiff to add an additional party defendant and to extend the time to answer. The action is to recover brokerage commission in connection with the sale of improved real propérty of which defendant was the seller. It was noted in the contract of sale by both the buyer and the seller that plaintiff brought about the sale and the seller (defendant) agreed to pay her the commission agreed upon by separate written agreement. Defendant is willing to pay the brokerage commission but states that another party claims a portion of the brokerage commission. It is evident that with respect to plaintiff’s action there can be an effective determination of the controversy without the presence of the party sought to be brought in. There is a distinction between a situation embraced in section 193 of the Civil Practice Act, requiring plaintiff to bring in an additional party, and those in which a defendant merely shows facts which involve in some way another alleged participant in the transaction which may be the basis of an interpleader (Bergman v. Liverpool & London & Globe Ins. Co., 269 App. Div. 103). Unless the absentee comes within the purview of section 193 of the Civil Practice Act, the plaintiff is entitled to proceed upon her theory of action and defendant is properly required to avail himself of other remedies. If plaintiff’s allegations concerning the agreement are correct, she is the sole necessary party plaintiff. There would be no defect of parties under such circumstances. If defendant claims that it is compelled at its peril to choose between two claimants, it may protect itself by other remedies. In such circumstances, the burden of bringing in the absentee should not be put upon plaintiff (Bergman v. Liverpool & London & Globe Ins. Co., supra). Accordingly, the motion to bring in an additional party *1026defendant is denied, and that branch of the motion for extension of time to answer is granted. Defendant’s time to answer is extended 20 days after service of a copy of this order with notice of entry.