
    Knickerbocker Trust Company, as Trustee, Respondent, v. Tarrytown, White Plains and Mamaroneck Railway Company and Others, Defendants, Impleaded with The Village of Mamaroneck, Appellant.
    Second Department,
    June 29, 1910.
    ■Party — definition—foreclosure of trust mortgage — creditor brought in as party after judgment to prove claim—no standing to attack judgment.
    Parties in the larger legal sense are all persons having a right to control a proceeding, to make defense, to adduce and cross-examine witnesses and to appeal from a decision if an appeal lies.
    Where after judgment in an action to- foreclose a trust mortgage on railroad property a village was permitted to come in as a creditor to prove certain claims against the mortgagor, which it wished paid out of the proceeds of the sale, and the stipulation and consequent order clearly show that it neither
    ■ sought nor was allowed to litigate any question to judgment, the village has no standing to move to amend the judgment of foreclosure and sale by striking out a clause whereby the purchaser of the mortgaged property was allowed to disavow any contract, lease or franchise with the village or any rights thereunder and upon disavowal to cease to be bound by the obligations of such contract or franchise.
    The fact that the village was described in the stipulation and subsequent order as a party doe's not clothe it with that status.
    When brought in as a matter of favor, the village cannot move to amend the judgment as to a matter not raised or litigated in the action by it 'or between the parties. It has no concern save that the proceeds may suffice to satisfy its claims.
    
      Appeal by the defendant, The Village of Mamaroneck, from an order of the Supreme Court, made at the "Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 20th day of January, .1910.
    
      William L. Rumsey [Robert E. Farley with him on the brief], for the appellant.
    
      Charles H. Tuttle, for the plaintiff, respondent.
    
      Middleton S. Borland, for the defendant Tarrytown, White Plains and Mamaroneck Railway Company and others.
    
      William Greenough [Charles F. Mathewson with him on the brief], for the defendant Westchester Street Railroad.
   Jenks, J.:

This is an appeal from, an order of the Special Term that denies á motion made by the village of Mamaroneck to modify the judgment of foreclosure and sale herein by striking out part -thereof.The mortgage covered all the real estate, franchises, rights and property of the defendant corporation, together with all. lands, properties, franchises, rights and privileges that, might thereafter be acquired. It was dated March 1, 1898, and was made by the defendant railway corporation to the plaintiff as trustee to secure an issue'' of bonds. ’ This action was -begun on January 9, 1909, judgment was entered on July 23, 1909; the sale thereunder, first appointed • for September 17, 1909, was made on November 5, .1909; the referee to sell reported on November 10, 1909, and the report , was confirmed on November 20 and November 27,1909.

The village of Mamaroneck was not made a party to- the action. But it insists -that it became a party pursuant to an order of the '■ Special Term made on.November 22, 1909, and as a party it made the motion now under review. It appears that the village had a claim against the defendant- corporation for certain paving work, assessments, and for sprinkling the railroad tracks. On October 4, 1909, a written stipulation was made by the attorneys, for the plaintiff, for the defendant corporation and for the village of Mamaroneck, respectively, that provided that the village of -Mamaroneck by virtue of such stipulation, be deemed a party and might cause an order to that effect to be made and entered as of course and without notice; without prejudice, however, to previous proceedings therein, and it was also stipulated that no pleadings or motions in reference to the complaint should be made by the said village. The purpose of the stipulation was specifically stated, and was embodied in an order entered at Special Term on November 22, 1909, as follows : “ Upon the annexed stipulation, it is Ordered 1. That the Village of Mamaroneck be, and it hereby is, made a party to this action and is to be deemed such party from and after October 4th, 1909, this order being made, however, without prejudice to any proceedings herein previous to said .October 4th, 1909. 2. That the validity and priority of any and all claims of the Village of Mamaroneck against the defendant railway company shall be heard and determined by the Beferee (hereinbefore • appointed by the judgment herein) in like manner, upon the same principles and with the same effect with respect to the proceeds of sale that they would have been heard and determined in this action if the said Village had been an original party hereto and had asserted said claim by answer herein. The fees of the Beferee and stenographer are to be paid out of the proceeds of sale.” The judgment of foreclosure and sale had provided, inter alia, that the purchaser or his successor or assigns might within 90 days after the confirmation of the sale of the entire property or any part thereof, disavow, renounce and relinquish any contract or lease, municipal consent,'franchise or agreement with the defendant, or the rights thereunder (other than those which were thereinbefore charged upon the property in the hands of the purchaser) which were a part of the property to be sold under and pursuant to the said judgment. Then was prescribed therein the form of such disavowal and a filing thereof before the referee, and upon such filing it was provided that the purchaser or his successor or assigns should be deemed not to have purchased the said contracts or leases, municipal consents, franchises or agreements or rights thereunder, or to be bound by the obligations thereof, “ but in such event the party so disavowing shall, with such disavowal and as a part thereof, reassign, reconvey and retransfer all his right, title and interest in the same ” to the receiver in this action. The said village, with the contention that it w.as a party to. the action solely perforce of the said stipulation and the said order in furtherance thereof, moved to amend the judgment by striking out the provision which we first described, upon the ground that since-1898 there had existed and still exists certain rights, franchises and contracts entered into for a valuable consideration between' the defendant • corporation and the village and town- of Mamaroneck; that since the grant and acceptance of the franchise the defendant corporation regularly carried passengers from White Plains to Mamaroneck in either direction for five cents; that under the sale the said defendant róad and its franchises were sold to Sutro, who purchased for the Westchester Street Bailroad Company, a corporation organized for the express purpose of operating such railroad, and succeeding to the franchises of the defendant corporation.; that Sutro subsequently attempted to assign all his rights to the said new corporation and that the said corporation had executed a notice of disavowal and renunciation of the franchise, and thereafter had demanded and had exacted fares in excess of five cents and’ continues so to do.

I think that the learned Special Term rightly decided that the village was not a party to the action. The fact that it was described as a party-cannot clothe it with that status. It came in, as it were, by consent, at the foot of the judgment as one interested in the suit as a creditor would be interested, in that it asserted claims against the' defendant. And it was permitted by the mortgagor and the mortgagee to assert and to establish, if it could, its claims before the referee as against the proceeds of the sale. The stipulation and the consequent order clearly indicate that the village neither* sought nor was to be allowed to litigate any question to' judgment, but that it was to be confined to’ proving a claim against the fruits, of the judgment. But “ Parties in the larger legal sense are all persons having a rilght to control the proceedings, to make defense, to adduce and cross-examine witnesses, and. to appeal from the decision, if any appeal lies.” (1 Greenl. Ev. § 535, cited in Oreen v. Bogue, 158 U. S. 478.) Brought in, then, as a matter of favor, for the sole purpose of proving a.claim as a creditor, the village now as a litigant would amend the judgment as to a matter which had not been raised or litigated in the action by it. or between the parties. A franchise is. property. It may survive a corporation that received it and exercised it. (People v. O’Brien, 111 N. Y. 1; Parker v. Elmira, C. & N. R. R. Co., 165 Id. 274, 280.) The village would amend the judgment so as to compel the purchaser or his assigns to buy what he did not wish to buy. So far as- this action is concerned, the village, in its status perforce of the stipulation, has no concern save that the proceeds might suffice to satisfy its claims, and such concern is met by the provision of the judgment that reads: “ Provided, however, that such disavowal or disavowals shall not entitle the said purchaser or purchasers, their successors or successor or assigns, to any reduction' in the amount of the bid, or in any amounts to be paid as in this judgment provided.” As to the subject-matter that was the basis of its-motion, the village is as much unaffected by the judgment as if it was an absolute stranger to this action. Its grievance is that a condition whereby the defendant corporation worked its road is violated by the railroad corporation which is the successor of that defendant. But if that successor seek to work its road under the franchise in violation of the obligations thereof, .or if it (or any other corporation) seek to work its ’road in violation of its charter or contrary to any right or franchise that it may possess, or contrary to law, or if it occupies or obstructs the public streets contrary to law, then there are remedies that suffice to .bring it to book for such offending. Some of them (we do not say all, under the present condition of the law) are indicated in Moore v. Brooklyn City R. R. Co. (108 N. Y. 98, 104) and People v. Albany & Vermont R. R. Co. (24 id. 261, 268).

The order is affirmed, with ten dollars costs and disbursements.

Burr, Thomas, Rich and Carr, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  