Summary
In Wood v. Swift, 81 N.Y. 31, the case had been referred to a referee, and witnesses examined, when the complaint was amended by adding new parties defendant; and upon such amendment being made the trial court entered an order to the effect that the case should "remain, continue, and be tried before the referee.... as though all parties now to the record had thus been from the beginning of the action," "the added defendants, however, to have the privilege of cross-examining the witnesses theretofore examined."
Summary of this case from Lange v. BraynardOpinion
Argued April 6, 1880
Decided April 13, 1880
George H. Foster for appellant.
J. Homer Hildreth for respondents.
At the time the order appealed from was made, this action had been pending and at issue between the plaintiffs and other defendants for a long time. It had been referred to a referee for determination, and he had taken much evidence, and the cause had been finally submitted to him on the merits for decision. While the case was in this position, the motion which resulted in this order was made.
It is conceded by appellant's counsel that the court had the power, under section 452 of the Code, to bring in the appellant and the other persons as parties defendant to the action. But, even if it could do that, it could not compel them to accept the referee who had been appointed, and to accept the evidence which had been taken, even with the right of cross-examination which was secured to them. The action does not appear in the papers before us to be one which could be referred without consent. The appellant had the right to have the cause tried by the court or a jury, and he at least had the right to be heard as to the appointment of a referee, and he had the right to be present when the witnesses were sworn and examined.
I do not perceive how the plaintiffs, in this action, could properly have an order restraining the appellant from prosecuting his action against the insurance company. If for any reason he ought not to proceed in that action, the insurance company can have his proceedings stayed in that action.
The most orderly and probably the least embarrassing way for the disposition of all the controversies about this insurance policy is to proceed with the interpleader action now pending.
The order of the General Term must, therefore, so far as it affects the appellant, be reversed, and that of the Special Term must also be reversed as to him, except as to so much thereof as makes him a party defendant in this action, and, as thus modified, it must be affirmed, without costs in this court to either party.
All concur.
Ordered accordingly.