
    William R. Weed, Appellant, and Florence J. Steenburgh Respondent, Who Bring This Suit on Behalf of Themselves and of All the Other Stockholders of The First National Bank of Saratoga Springs, N. Y., Situated Similarly with Themselves, v. The First National Bank of Saratoga Springs, N. Y., Appellant, Impleaded with William B. Gage and Others, Respondents.
    Third Department,
    January 9, 1907.
    Parties—joinder of plaintiffs by consent — motion by one plaintiff to bring in new defendant — protection of coplaintiff against costs.
    When in'a stockholder’s action against the directors of a bank for malfeasance, a plaintiff has been brought in by consent of the parties, the intervening plain tiff is entitled to the same rights and privileges as the original plaintiff Hence, when the intervening plaintiff moves to bring in a new defendant, which motion is opposed.by the original plaintiff, the'court in its discretion may decide between the conflicting interests of the coplaintiffs and bring in the defendant, if he is a proper-party.
    But under such circumstances the plaintiff who objects should be secured against costs if the defendant brought in be successful, and the moving party should be required to give a bond to indemnify him.
    Appeal by. the plaintiff William R. Weed and by-the- defendant, The First National Bank of Saratoga Springs, N. Y.,. from an order of the Supreme Goni-t, made at the Albany Special Term and entered in the office of the clerk'of the county of Saratoga on the 13tli day of July, 1906, granting a motion made by the plaintiff Florence J. Steenbñrgh that Willard Lester be made a party defendant in this action.
    
      Edgar Y Brackett [ Walter P. Butler.l of counsel], for the appellant William R. Weed.
    
      Clarence B. Kilmer [Walter P. Butler of counsel], for the appellant The First National Bank of Saratoga Springs.
    
      Lewis E. Carr, for the respondent Florence J. Stéenburgh.
    
      John L. Henning [Marcus T. Hun of counsel], for the respondents William B. Gage and others.
   Cochrane, J.:

The action was originally instituted by William B. Weed as sole plaintiff. Thereafter, Florence J. Steenburgh was, by order of the court on her own motion, permitted to intervene as a party plaintiff and to appear as such plaintiff bj her attorney. Such order was granted without opposition, after notice to the original plaintiff Weed. From the papers used on the present motion it appears that it was made upon the consent of the respective parties.”

The propriety of such order, granted as it was without objection by the original "plaintiff, cannot here be questioned. That such an order may lead to friction between plaintiffs as a • result of their uncongeniality, or. because of divergent motions as to the manner in which the litigation should be conducted, is demonstrated by the present controversy. It is also apparent that such a dual relationship of coplaintiffs may lead to confusion in practice worse confounded. But those are arguments which should have been directed against the order of intervention. The status as a coplaintiff of the respondent Steenburgh having been judicially fixed with the practical consent of the original plaintiff, such intervening plaintiff is now entitled to the same rights, privileges and consideration to which she would be entitled had she jointly with the plaintiff Weed originally instituted the action with his consent and co-operation.

Viewed from this standpoint, the "question as to the propriety of bringing in another person as a party defendant resolves itself into a proper exercise of discretion by the Special Term ip an effort to subordinate as much as possible the internecine warfare between the coplaintiffs to their common interests, and to make such a disposition of the question as will best subserve those interests.

The plaintiffs as stockholders of the defendant bank seek to maintain the action for the benefit of the bank and all its stockholders to recover of certain directors of the bank for losses claimed to have been sustained by reason of their alleged negligence and malfeasance as such directors. The proposed defendant Lester was also a director, and is claimed by the plaintiff Steenburgh to be liable in this action. Hence this motion on the part of such plaintiff to bring in Lester us a defendant, which motion is resisted by the other plaintiff Weed.

The court will not on this motion consider whether a cause of ■ action exists against the proposed defendant. That question must be determined in the usual way after the action shall be at issue as to 'him. Suffice it to say that it may be desirable in the interests of the stockholders generally that Lester should be a defendant. On the other hand, it is not apparent how the plaintiff Weed can be prejudiced by the presence of Lester as a defendant; except by the possible contingency of costs in case Lester should be successful in the litigation. The discretion of the Special Term was not improperly exercised,,except that the plaintiff Weed should have been pror tected against such costs. A plaintiff who seeks to force on his coplaintiff, against the protest of the latter, a litigation with a party not already identified with the action should be willing to assume responsibility for the costs of such litigation if unsuccessful.

The order should, therefore, be modified by requiring the respondent Steénburgh to give to the appellant Weed a bond to be approved by a justice of the Supreme Court, to protect said Weed against all costs which, may be awarded in favor of the proposed defendant, and as thus modified" affirmed, without costs. Unless the respondent .Steenburgh complies with this modification within twenty days the order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

All concurred, except Smith, «L, who voted for reversal; Parker P, J., not sitting.

Order modified by requiring the respondent Steenburgh to give to appellant Weed a bond, to be approved by a justice of the Supreme Court, to protect said Weed against all costs which máy be awarded in favor of the proposed defendant, and as thus modified affirmed, without costs. Unless the respondent Steenburgh complies with this modification within twenty days the order must be reversed, . with ten dollars costs and disbursements, and motion denied, with ten dollars'costs.  