Opinion
November 19, 1915.
Maurice J. Dix [ James A. Donnelly and Harry E. Fajans with him on the brief], for the appellants.
Ferdinand E.M. Bullowa, for the respondent.
The appeal is taken by the plaintiff and by the defendant John N. Burns from an order of the Special Term that grants the motion of the Bridge Café to intervene as a party defendant, and for the appointment of a receiver pendente lite of the leasehold property. The action is for partition of realty and of a chattel real. The latter was the subject-matter of Burns v. City of New York ( 213 N.Y. 516). The plaintiff in the case at bar complained that the Burns had entered into an agreement to sell and to assign the renewed term of the lease, if granted, to parties unknown. The Bridge Café identified itself with the other party to the said agreement. We think that the discretion of the Special Term (See Pope v. Manhattan Railway Co., 79 App. Div. 583) should not be disturbed so far as the intervention of the Bridge Café is concerned. (Code Civ. Proc. § 452; Townsend v. Bogert, 126 N.Y. 370; Delcambre v. Delcambre, 210 id. 460, 466.) By this affirmance nothing more is determined than the propriety of the order that makes the Bridge Café a party. The contention of the respondent who sought for a receiver is, that the said lease for years passed to Burns as administrator de bonis non. We think that under the circumstances the court should not have taken the property from him. (See Patterson v. McCunn, 46 How. Pr. 182.)
The order must be modified as indicated in this opinion, and as so modified it is affirmed, without costs.
JENKS, P.J., THOMAS, CARR, MILLS and RICH, JJ., concurred.
Order modified in accordance with opinion, and as so modified affirmed, without costs.