
    Graves Elevator Company, Resp’t, v. Masonic Temple Association of Olean, Def’t. Benjamin U. Taylor, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1895.)
    
    1. Parties — Intervention.
    Section 452 of the Code, which authorizes a person not a party, who has an interest in the subject-matter of the action, to be brought in as a party, applies to actions at law as well as to suits in equity.
    2. Same.
    The evidence was held sufficient to show that the petitioner had such an interest in the controversy as entitled him to he made a party defendant.
    Appeal from an order, denying the application of the petitioner to be permitted to come in as a party defendant and defend the action.
    
      F. W. Kruse, for app’lt; A. J. Hastings, for resp’t.
   Lewis, J.

In the the year 1892 the defendant, the Masonic Temple Association of Clean, entered into a contract with one William D. Moore for the construction of a building in Clean. Moore’s contract included the furnishing and placing in the building of a passenger elevator, which the plaintiff, at the request of Moore, furnished and placed in the building. Moore sublet the construction of various parts of the work. After the elevator was in the building, Moore having failed to pay his sub-contractors, a number of them filed mechanics’ liens against the building for work and material which they had performed and furnished. Benjamin U. Taylor was one of the subcontractors who filed a lien. So did the plaintiff. The amount of its claim was stated to be $1.800. After-wards plaintiff and other lienors joined in an action in the supreme court, making the Masonic Temple Association, Moore, Taylor, and other parties defendant, for the purpose of foreclosing and adjusting the rights of the parties under their various liens. The issues joined were referred to a referee for trial, and, while said action was pending and the trial was proceeding, an accounting took place between the parties to said action, including the plaintiff in this action, for the purpose of ascertaining the amount due and owing by the Masonic Temple Association to the contractor William D. Moore. The sum of $14,509.41 was found to be the ■amount due said contractor. This sum was sufficient to pay in full all the liens prior to Taylor’s, and nearly sufficient to pay his claim, but nothing was left applicable to plaintiff’s claim, its lien being the last one filed. When it was ascertained that the liens prior to the plaintiff's would consume the' entire fund, application was made to the referee in its behalf for leave to withdraw from the action, upon the ground that under its contract with Moore the elevator was to be its property until it was paid for. The application was granted, and the action proceeded to judgment. By the terms and provisions of the judgment, it was established and determined that there was due from the defendant, the Masonic Temple 'Association, to Moore, the contractor, the sum of $14,-509.41; and it further provided that that sum should be deposited by the defendant in the Exchange National Bank of Olean, to be paid by it upon the liens therein provided for, but none of the said moneys were to be applicable, by the terms of said judgment, to the paynlent of the claim of the plaintiff herein, for the reasons before stated. The amount thus found due to Moore was deposited in said bank. The amount found due by the referee from the contractor to Taylor was $7,615.43. The judgment provided that from the sum found due Moore $1,800 should be retained and deposited in 'the said Exchange National Bank, to be held by said bank until the question of the liability of the Masonic Temple Association to pay the claim of the elevator company, or the right of the said elevator company to reclaim the said elevator, should be finally determined by'a court of competent jurisdiction, or until such questions were determined by an agreement of the parties interested, to wit, the parties to the action and the said Taylor; and that -when such final determination should have been made, or such agreement concluded, if it was to the effect that the elevator was the property of the Masonic Temple Association, and not the property of the Graves Elevator Company, then the $1,800 should be paid over to Taylor, to be by him applied upon his lien. If, however, it should be determined or agreed that the elevator was the property of the plaintiff, then the $1,800 was to be paid to the Masonic Temple Association, in the event that the elevator company reclaimed said property ; and if the elevator company did not reclaim the property, and it should be determined or agreed that the elevator belonged to it, then the $1,800 was to be paid to the elevator company, and the elevator in that event was to belong to the Masonic Temple Association, even if it should be determined or agreed that the elevator did at the time of making said referee’s report belong to the said elevator company. The Graves Elevator Company thereafter commenced this action against the Masonic Temple Association to recover the possession of the elevator, the value of which was stated in plaintiff’s affidavit to be the sum of $1,800. After the commencement of said action, and before the service of the complaint therein, the appellant, Taylor, made application to the court to be joined as a party defendant in said action, his claim being that he had an interest in the subject thereof. It appeared in his affidavit, in addition to the facts above stated, that while he was furnishing the materials and doing the work upon the building, the elevator was placed therein and made a part of it by the workmen of the elevator company, and that he thereafter continued to do work upon the building, having in mind the fact that the building was sufficiently in progress of completion, and that sufficient money would be due from the owner to the contractor, to make him secure in doing the work and furnishing the materials, and that he relied upon the elevator, as belonging to the owner of the building, as part of his security. His affidavit further stated that he took part in the accounting before the referee, but was only interested in seeing that the amount due the -contractor was sufficient to cover his liens upon the building, in addition to those prior thereto, and that had he known that the elevator was not a part of the building, or was claimed by the elevator company, some of the sums which were allowed in the settlement, and which would have increased the amount due to Moore, and also other sums which would have reduced the amount due on liens prior to his, would not have been allowed by him. From this, he claims, arises by way of estoppel a defense which is personal to himself. The appellant’s motion was denied, and from the order denying the motion this appeal was taken.

It is apparent from the facts stated that Taylor has an interest in having it adjudicated that the elevator is a part of the building, and belongs to the owners thereof, whereas the defendant has very little, if any, interest in the event of the action. If the plaintiff succeeds in establishing its title to the elevator, it will receive the $1,800 on deposit. It cannot with any propriety be contended, in view of the arrangement stated, that the elevator will be removed from the building. If the plaintiff fails in establishing its claim to be the owner of the elevator, the $1,800 will belong to and will be paid to the appellant Taylor. The appellant and the plaintiff are therefore the only parties interested in the question to be litigated. It is the contention of the counsel for the respondent that, it being an action at law, the cannot be to in other parties than those it has chosen to make defendants;. and lie relies upon the case of Chapman v. Forbes, 123 N. Y. 532; 34 St. Rep. 351, as sustaining his contention. He claims that case holds-that section 452 of the Code of Civil Procedure has reference only to suits in equity, and not to actions at law. Since the granting of the order from which this appeal was taken, the case of Rosenberg v. Salomon, 144 N. Y. 92; 63 St. Rep. 62, has been decided by the court of appeals. If the case of Chapman v. Forbes, supra, can be construed as sustaining the contention of the respondent’s counsel, the doctrine of that case must, we think, be held to have-been modified and limited by the Rosenberg Case. The latter case-was an action of replevin brought against the sheriff of Kings county to recover the possession of certain chattels levied on by him under execution against Salomon and Wolf. Salomon and Wolf were made parties, and they applied for leave to intervene as parties defendant. Their motion was granted, the order affirmed at general term, and again in the .court of appeals. The court held that section 422 of the Code, with its new added provision, applies to legal as well as equity actions. The appellant made ai case entitling him to be made a party defendant.

The order appealed from should be reversed with $10 costs and. disbursements, and the motion granted.

All concur.  