
    Raymond Christman, App’lt, v. John W. Thatcher, as Overseer, etc., and the Town of Amsterdam, Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May, 1888.)
    
    Parties—Code Civil Pro., § 452—Application to be made a party— When denied.
    „ Where a person, if made a party defendant by the plaintiff at the commencement of the action, could have demurred successfully on the ground of no cause of action and on the trial would have recovered against the plaintiff, his costs, it can seldom, if ever, be proper to compel the plaintiff to add such a person as a party defendant.
    Appeal from an order of the Montgomery county special term, granting a motion to make the Town of. Amsterdam a party defendant to the action.
    
      Edward P. White, for app’lt; Westbrook & Borst, for def’t, Thatcher; Peter J. Lewis, for town of Amsterdam.
   Learned, P. J.

This is an action to recover for services, rendered as alleged by plaintiff’s assignor, a physician to an indigent person, at the request of defendant. The town of Amsterdam moved to be made a party defendant, and an order was granted requiring plaintiff to amend his summons and complaint accordingly. The plaintiff appeals, and alleges, among other things that he has no right of action against the town of Amsterdam and will therefore be beaten as to that defendant on the trial, and hence may incur two bills of costs.

The town insists that it will ultimately be liable for the. payment of any sum recovered against the overseer, and charges that the overseer does not defend the action in good faith.

This is a mere common law action for the recovery of money on contract. It affects no specific property. Now without attempting to specify all the cases in which the remedy given by section 452 may be had, we think it is-plain that when a person, if made a party defendant by the plaintiff at the commencement of the action, could have demurred successfully on the ground of no cause of action, and on the trial would have recovered against plaintiff, his costs, it can seldom, if ever, be proper to compel the plaintiff to add such a person as a party defendant. There have been many decisions and some of them conflicting, on this section.

In some cases cited by the respondent the court gave simply the right to appear and cross-examine, as in Clay v. Clay (21 Hun, 609), in some to produce witnesses as in Tilby v. Hayes (27 Hun, 251), in some to proceed in the name of the party, as in Hoffman v. Steinau (34 Hun, 239). Davies v. Fish (19 Abbott, N. C, 24), in the court of appeals was an equitable action brought by relator, and was therefore within the old chancery practice of bringing in all persons having an interest, the matter of costs being to the discretion of the court. Haas v. Pike (19 Hun, 398) was for an annuity, and the person made a party had an interest in the land affected. See 19 Abbott, N. C., 29. In Ithaca Gas Light Company v. Treman (30 Hun, 212) the person made a defendant stood in the position of a quasi cestui que trust of the plaintiff viz.: a stockholder of the company and could probably have maintained the action as plaintiff, if the company had refused to sue. Johnston v. Donvan (106 N. Y., 269); 8 N. Y. State Rep., 676), was a case where the person who was made a defendant claimed an equitable title to the land under foreclosure. We do not think it necessary to cite other cases; these are enough to show that the present is a case of a different character from those where the relief has been granted. By the provisions of the statute the original defendant, Thatcher, is charged with the duties out of which this action arose. He is the proper person to be sued and to defend the rights of the town. We do not think that the supervisor should compel the plaintiff to make the town a defendant, in order that the supervisor may defend the action. The order should be reversed, with ten dollars costs and printing disbursements and motion denied with ten dollars costs to be paid by said town

Landon and Ingalls, JJ., concur.  