
    William A. Ten Eyck, Respondent, v. Robert H. Keller, Appellant. Idene Dayton Denison, Appellant.
    
      Additional parties defendant cannot be brought into an action for conversion — the defendant, as a defense, may show title in a stranger — Code of Givil Procedure, § 452, relates to equity suits.
    
    Where the defendant in an action for the conversion of chattels interposes an answer denying the conversion and alleging title to the chattels in one Denison from whom he rented them, the court has no power to allow the plaintiff, over the objection of the defendant and Denison, to bring in the latter as a party defendant.
    Section 452 of the Code of Civil Procedure, authorizing the bringing in of involuntary additional parties defendant, relates only to equitable actions.
    
      Semble, that the defendant in an action for the conversion of chattels may show title in a stranger under a general denial.
    Appeal.by the defendant, Robert H. Keller and by Idene Dayton Denison, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 2d day of May, 1904, granting the plaintiff’s motion to make Idene Dayton Denison a party defendant, and for leave to serve a supplemental summons and an amended complaint.
    
      Walter S. Logan and Lynn C. Morris,, for the appellants.
    
      H. D. Bailey, for the respondent.
   Houghton, J.:

The plaintiff brought action against defendant Keller for conversion of certain theatre chairs. He answered, denying the conversion and pleading title in one Idene Dayton Denison, his landlord, from whom he had rented the property in dispute. Thereupon the plaintiff moved to make Denison a party defendant and - for leave to serve a supplemental summons and an amended complaint. Such order was made, and both the new and the old defendant appeal.

The order was unauthorized and must be reversed. The action is purely one at law for a wrong. Thé complaint does not ask that the title to the property in question shall be determined. It alleges ownership in plaintiff and wrongful taking and detention by defendant Keller, and demands damages therefor. The defendant’s plea of title in another does not change the plaintiff’s rights. Under a general denial in such an action, the defendant could show title in a stranger. (Siedenbach v. Riley, 111 N. Y. 560.) In an action at law where a money judgment alone is sought, a plaintiff can neither be compelled nor permitted, under the provisions of section 452 of the Code of Civil Procedure, to bring in other parties than those he chose originally to make defendants. (Chapman v. Forbes, 123 N. Y. 532; Heffern v. Hunt, 8 App. Div. 585.) The provisions of that section of the Code as to bringing in additional parties relate only to equitable actions. (Goldstein v. Shapiro, 85 App. Div. 83; Rosenberg v. Salomon, 144 N. Y. 92; American Trust & Sav. Bank v. Thalheimer, 29 App. Div. 170.) The latter part of the section permits a third person having an interest in the subject of the controversy to himself apply to come in and litigate; and if the court deems it proper for him to do so, neither the plaintiff nor the defendant can prevent his being added as a party defendant. But he cannot be compelled to come in and defend against his will.

If the plaintiff in an action at law for the recovery of a money judgment has chosen the wrong defendant, he must withdraw and sue the proper one; for he cannot be permitted to gather in parties at will after he has begun his action.

The order should be reversed, with ten dollars costs and disbursements.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs,  