
    Abraham Hochman, Respondent, v. Hyman Hauptman and John Doe, Defendants. Abraham Barasch, Appellant.
    
      Replevin — substitution of a third person claiming the property in the place of a defendant, John Doe•—a failure to pay the costs ofaprior motion is a ground for its denial ■—■ denied on the merits where it appears that such was not the plaintiff’s intention when the action was commenced, and that the third person had been injured by the delay.
    
    One Hoehinan brought an action against Hyman Hauptman and John Doe to replevin certain property which he claimed by virtue of certain chattel mort^ gages executed by the said Hauptman. ’ After the property in question had been seized by the sheriff under the writ of replevin, one Barasch, who claimed to have purchased the property from Hauptman without notice or knowledge of the mortgages, filed his claim with the sheriff as a third party. Hochman then obtained an order requiring Barasch to show cause why the title of the action should not be amended by inserting Barasch’s name therein instead of that of “ John Doe.” This motion was denied, with ten dollars costs, on the ground that “John Doe” was not described “ as being fictitious.” Thereafter Hochman, without paying such costs, obtained an ex parte order substituting Barasch as a party defendant in the place of “ John Doe.”
    
      Held, that Hochman’s failure to pay the costs of the former motion constituted a sufficient reason why the subsequent ex parte motion for the same relief should have been denied;
    That, aside from this objection, the ex parte motion should have been denied upon the merits, for the reasons that it appeared that both Hochman and his attorney were aware of Barasch’s claim to the property at the time the action was brought, and that it was not their intention to sue Barasch under the name • of “ John Doe,” and also that Barasch had lost valuable rights by not having been made a party to the suit as originally brought.
    Appeal by Abraham Barasch 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 Hew York on the 4th day of June, 1901, directing that a supplemental summons issue making him a party defendant in the place of “John Doe,” and also from an order, made at the Hew York Special Term and entered in said clerk’s office on the 28th day of June, 1901, denying the appellant’s motion to vacate and set aside the first-mentioned order.
    
      Joseph Gans, for the appellant.
    
      Abraham B. Schleimer, for the respondent.
   Laughlin, J. :

The action is in replevin to recover “ three machine presses, types and all the appurtenances ” to which the plaintiff claims to be entitled by virtue of two chattel mortgages thereon, given by the defendant Hyman Hauptman, who was the owner thereof at the time, default having been made in the payment of indebtedness to secure which the mortgages were given. The plaintiff does not show when the mortgages were given or that they have been kept alive by refiling.

The appellant claims to have purchased this property of the defendant Hauptman without notice or knowledge of the existence-of the mortgages and that he subsequently formed a partnership with Hauptman’s son in the printing business. At this time the appellant was an infant. After the partnership continued for a time he was informed by his partner that the latter had mortgaged the property to his father, the defendant Hauptman, and thereupon the appellant, on the ground of his infancy, rescinded the partnership and brought an action in the Municipal Court against his partner and the latter’s father to recover the property in question. On the trial of that action on the 8th day of May, 1901, the plaintiff in this action was a witness for the defendants and testified concerning his claim of interest in the property under his mortgage, and the defendants were represented by the attorney who appears in this action for the plaintiff. That action resulted in a judgment in favor of the plaintiff therein for the possession of the property and' possession was delivered to him thereunder. He subsequently stored it in the printing establishment of one Sam Kest at Ho. 140 Attorney-street in this city. Pending an appeal from that judgment which was taken by the defendants this action was brought and Hyman Hauptman and John Doe were made sole defendants. The plaintiff gave the usual undertaking and caused a writ of replevin to be issued under which the sheriff seized the property. The appellant Barasch thereupon filed a claim with the sheriff as third party claimant and the sheriff demanded an indemnity bond of the plaintiff. The attorney for the plaintiff then obtained an order requiring the appellant to show cause why the title oE the action should not be amended by inserting his name instead of that of “ John Doe.” On the return of the order the motion was denied, with ten dollars costs, on the ground, as stated in the papers, that “ John Doe ” was not described “ as being fictitious.” These costs have not been paid and the appellant objected to the hearing of the motion on which the order appealed from was granted on the ground of their non-payment. That objection was well taken and should have been sustained. (Code Civ. Proc. § 779; Mac Whinnie v. Cameron, 57 Hun, 463; 11 N. Y. Supp. 20.)

The plaintiff then, without notice to the appellant, obtained ex parte the order of June fourth from which the appeal is taken. On June 6, 1901, on account of this order, the sheriff refused to deliver the property to the appellant. The appellant then moved on notice to vacate the order, but his motion was denied, with ten dollars costs_

Aside from the plaintiff’s proceeding being stayed for non-payment of the motion costs, the motion should have been denied upon the merits. This is an action at law. The appellant was not a necessary party to the determination of any controversy between the plaintiff and the defendant Hauptman or “John Doe ” with reference to their title to the' property and he should not be brought in against his will at this stage of the action. From the denial of the plaintiff’s motion to substitute the appellant for “John Doe,” it must be assumed that the court found that it was not the plaintiff’s intention to sue the appellant under the name “ John Doe.” It is evident that both the plaintiff and his attorney were aware of the appellant’s claim to this property at the time the action was brought. -If the name “ John Doe” sufficiently indicated that he was a fictitious person, and it appeared' that the- plaintiff thereby intended to sue the appellant, but did not know his real name, the court had power to substitute the true, name of the appellant for tha-t of “ John Doe ” “in pursuance of justice” (Code Civ. Proc. §§451, 723; Town of Hanock v. First Nat. Bank, 93 N. Y. 82), but upon the papers before us it is inconceivable that this could have been shown to the satisfaction of any court. If the plaintiff desired to litigate the appellant’s claim to the property he should have been made a party defendant originally. If the appellant had been joined originally he would have been protected by the undertaking and he could have excepted to the sureties or have reclaimed the property. (Code Civ. Proc. §§ 703, 704.) It is not clear that the appellant’s rights could be fully protected if he were now brought in as a party defendant.

For these reasons, also, the order appealed from should be reversed, with ten dollars costs and disbursements, and the appellant’s motion to vacate the e® patrie order directing the issue of a supplementary summons should be granted, with ten dollars costs.

Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.

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