Opinion
November 27, 1929.
Appeal from Supreme Court of Albany County.
Henry J. Crawford, for the appellant.
Ralph M. Cooper, for the respondent Mabey.
Aufsesser, Murray Pedlow, for the respondent Bull.
Issue had been joined between the plaintiff and defendant Mabey, when on motion by defendant Mabey but without notice to plaintiff the defendant Bull was brought in as a party. In the order the defendant Mabey was permitted to issue and serve on defendant Bull a supplemental summons and a pleading wherein shall be included appropriate allegations setting forth the liability of said Jennie K. Bull and the defendant Bull is required to answer and plead so that the claim of the defendant Mabey against the defendant Bull may be determined in this action. (Civ. Prac. Act, § 193, subd. 2, as amd. by Laws of 1923, chap. 250.) When defendant Bull answered, issue was joined between the two defendants. To this issue plaintiff was and is a stranger. The procedure under this section is not equivalent to or in the nature of an inter-pleader. The judgment for costs in favor of defendant Bull against the plaintiff is improper.
The order and judgment should be reversed, with costs, and the motion granted, with costs.
VAN KIRK, P.J., HINMAN, DAVIS, HILL and HASBROUCK, JJ., concur.
Order and judgment reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.