
    Charles Goldstein, Respondent, v. Albert Shapiro, Impleaded with Others, Defendants. Alexander Felman, Appellant.
    
      Replevin — the court cam, direct a party to be brought in only in an equity case—a third party filing a claim, to the property can be brought in only on his own application.
    
    The 1st paragraph of section 452 of the Code of Civil Procedure, which provides, “The court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in,” is only applicable to equitable actions.
    Under the 2d paragraph thereof, which provides, ‘ ‘ And where a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, or in real property for injury to which the complaint demands relief, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment,'' the application must be made by the party to be brought in.
    When, after the commencement of a replevin action and the levy under the writ, a third party files a claim to the property with the sheriff, the plaintiff is not entitled, over the objection of the third party, to have the third party brought in as a party defendant.
    Appeal by Alexander Felman from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of April, 1903, granting the plaintiff’s motion to bring in the said Alexander Felman as a party defendant herein and directing that a supplemental summons issue.
    Section 452 of the Code of Civil Procedure, which is referred to in the opinion, provides as follows :
    “ The court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in.
    “ And where a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, or in real property for injury to which, the complaint demands relief, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment.”
    
      Moses Feltenstem and Lewis Goldberg, for the appellant.
    
      Charles G. F. Wahle, for the respondent.
   Jeñks, J.:

The plaintiff complains in replevin.' After the levy, a stranger filed a third party.claim with the sheriff. Thereupon the plaintiff moved at Special Term for an order to bring in the third party by supplemental summons. The motion was opposed, but the court made the order, and the third party appeals. I think that' the order should be reversed. The 1st sentence of section 452 of the Code of Civil Procedure is substantially and almost literally a re-enactment of a part of section 122 of the Code of Procedure. Rosenberg v. Salomon (144 N. Y. 92) decides that so much thereof applies only to equitable actions, citing Chapman v. Forbes (123 N. Y. 532).

As to the latter part of section 452, additional to section 122 of the Code of Procedure, Chapman v. Forbes (supra) holds.: “ The person who is not a party to the action, and who has an interest in the subject thereof, must, by the terms of the section, himself make application to be made a party.” King Co. v. Seed (6 Misc. Rep. 4) is an authority in point. It is true that the order in the King Co. Case (supra) was obtained.ex parte, but the case still presents - the feature that the application was made by the plaintiff.

Whether the third party applies or resists, defines an important difference. If he chooses to litigate his title in the action, then he takes the disadvantage incident to his choice. But if he is brought in against his will, he is deprived of the benefit of section PT09 of the Code of Civil Procedure. Nor is it an answer that the plaintiff could have made him a party originally, because if this had been done, the third party would have had the protection of the undertaking, which he now1 has not, and he could have excepted to the sureties or have reclaimed the property, which he now cannot do. These considerations moved the court in Hochman v. Hauptman (76 App. Div. 72, 75). On the other hand, I see no cogent reason why this relief should be afforded to the plaintiff. Before the rights; of the parties to the suit can be adjudicated, it is not necessary that the rights of the third party be determined, and, therefore, he is; not a necessary party to a complete determination of the issues, (See the definition of Woodruff, J., in M'Mahon v. Allen, 12 How. Pr. 39, approved in Chapman v. Forbes, supra.)

I think that the opinion of this court in Schun v. Brooklyn Heights R. R. Co. (82 App. Div. 560) does not control the case at bar. Sohun’s case arose upon negligence, and the court thought that section 723 of the Code of Civil Procedure, in accordance with the dissenting opinion of Follett, J., in Heffern v. Hunt (8 App. Div. 585, 591) and a decision of the General Term of the City Court of New York in Romanoski v. Union Railway Co. (30 Misc. Rep. 830), was broad enough to warrant the relief afforded. This case arises upon replevin, and section 723 is not of such paramount force in this case as tó justify relief pursuant to its provisions in disregard of the other sections of the Code of Civil Procedure cited and applied in this opinion.

The order should be reversed, with costs.

Goodrich, P. J., Bartlett, Woodward and Hooker, JJ., concurred.

Order reversed, with ten dollars cost and disbursements.  