
    Leo Oppenheimer, as Trustee in Bankruptcy of Michael H. Gillespie and William E. Walsh, Individually and as Copartners Composing the Firm of Gillespie, Walsh & Gillespie, Appellant, v. The City of New York, Defendant. Chelsea Exchange Bank, Respondent.
    First Department,
    February 16, 1912.
    Practice — motion to intervene as defendant — action on contract — assignee of moneys due.
    On the trial of an action by a trustee in bankruptcy to recover a balance due the bankrupt on a municipal contract, the court has no power over plaintiff’s objection to grant a motion permitting a bank to which the bankrupt had duly assigned a portion of the money due or to grow due on the contract to intervene.
    The fact that the city certified at the inception of the contract that it had the money to pay for the work and the fact that the complaint alleges that other funds in the city’s possession are applicable to the payment of plaintiff’s claim do not show that the plaintiff seeks payment from a specific fund.
    Appeal by the plaintiff, Leo Oppenheimer, as trustee, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of October, 1911, as resettled by an order entered in said clerk’s office on the 23d day of November, 1911, granting the motion of the Chelsea Exchange Bank to intervene in the action as a party defendant.
    
      Frederick Hulse of counsel [Eidlitz & Hulse, attorneys], for the appellant.
    
      W. W. Shaw of counsel [Shaw, Fisk & Shaw, attorneys), for the respondent Chelsea Exchange Bank.
   Clarke, J.:

Appeal from an order made on the motion of the Chelsea Exchange Bank directing that it be made a party defendant.

The complaint alleges that Gillespie, Walsh & Gillespie had a contract with the city for building the new police headquarters for $662,250, payable in installments as provided, and that the firm proceeded to perform until December 31, 1907, when a petition that they be adjudged bankrupts was filed. They were adjudicated bankrupts February 17, 1908. The plaintiff was appointed trustee and authorized to proceed with the work and did so. The complaint demands $73,548 as a balance unpaid on said contract and $24,542.35 for certain extra work under subsequent contracts and orders.

The city alleges in its answer, for a partial defense, that theretofore and before the commencement of this action, and on or about the 1st day of May, 1907, Gillespie, Walsh & Gillespie, by an instrument in writing and under seal, duly assigned to the Chelsea Exchange Bank of the city of New York the sum of $20,000 of the retained percentages due orto grow due for and by virtue of said contract, and duly delivered said assignment to the Chelsea Exchange Bank and to defendant; that by virtue of said assignment the Chelsea Exchange Bank became entitled to said sum of $20,000 and has all right, title and interest thereto and the plaintiff, as trustee in bankruptcy by reason of the assignment aforesaid, is deprived of all right and title to the said sum. The Chelsea Bank, setting up the same matters, moved that it be made a party defendant.

The learned Special Term granted the motion upon the authority of Gittleman v. Feltman (191 N. Y. 205). But in that case the motion was made by plaintiff to bring in as a defendant a third person claimed to be a joint tort feasor with the other defendants, and the precise question which the Court of Appeals answered in the affirmative was: Has the Supreme Court, upon the motion of the plaintiff, in an action to recover damages for personal injuries resulting from negligence, the power to bring in as defendant a party not named as a defendant at the time of the commencement of the action against the objections of the defendants originally named and of the proposed new defendant ? ” and said: The true test, doubtless, is as to whether the person could have been joined as a party at the comm encement of the action, and whether the plaintiff has given a satisfactory excuse for his failure so to do.”

It is evident, we think, that the case cited does not apply. This is a motion, not by the plaintiff, but by the bank seeking to have itself made a party defendant, and the only statutory authority for such a proceeding is found in the 2d sentence of section 452 of the Code of Civil Procedure: “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.”

In Bauer v. Dewey (166 N. Y. 402) plaintiff brought an action to recover §2,500 as compensation for services as a real estate broker. One Delack made a motion to intervene, alleging that he was entitled to one-half the commissions. The Special Term granted an order permitting Delack to intervene and that order was affirmed by the Appellate Division by a divided court (56 App. Div. 67). An appeal was allowed and this question certified: “ 1. Has the Supreme Court power to compel the plaintiff, in an action in which a money judgment only is sought, and in which the title to specific property is not involved, to bring in as a defendant a third party on his own application, and to order a supplemental summons and complaint served upon him ? ” The court unanimously answered that question in the negative and said: “The purpose of this action was to recover a debt of the defendant to the plaintiff. The title to no real, specific or tangible personal property was involved. The claim of Delack was that by virtue of an agreement between himself and the plaintiff’s assignor, he was entitled to one-half of the defendant’s debt. * * * If Delack were permitted to become a party to the action, other issues than those involved between the plaintiff and the defendant would be presented. Instead of its being an action merely to determine whether the defendant was indebted to the plaintiff, and if so, the amount, it would be transformed into an action involving not only that issue, but the fraud of the plaintiff’s assignor and in effect constitute an action to set aside a receipt or paper signed by Delack. We are of the opinion that section 452 furnishes no authority for such an order.”

There is no substance in the claim here that a specific fund is being pursued because the city certified at the inception of the contract that it had the money to pay and because the complaint alleges that there are funds in the possession of the defendant applicable to the payment of the said sum to the plaintiff. This is a common-law action to recover a sum due on a contract. If the bank has a cause of action on the assignment it could have long since sued thereon. Under the Bauer Case (supra) the court has no power upon the motion of the bank and against the opposition of the plaintiff to inject it into the case as a party defendant. If it had the power it ought not to exercise it.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., McLaughlin, Laughlin and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  