
    The City of New York, Plaintiff, v. Gilbert Montague, Receiver, Fulton Street Railroad Company, Defendant.
    (Supreme Court, New York Special Term,
    December, 1911.)
    Set-off and. counterclaim— Claims which may be allowed as counterclaim or set-off in general — Demands against third person — Claim against co-defendant.
    In an action by a municipality against the receivers of a street railway company to have the company’s tracks in a public street adjudged a public nuisance in consequence of their condition and removed, holders of the bonds of the company which leased the line-to the corporation represented by the receivers, having been joined as defendants, may not set up as a counterclaim against the receivers the provisions of the lease in which the lessee was bound to repair, and keep the tracks in order and demand an affirmative judgment against the receivers compelling them to carry out the provisions of the lease, as such alleged counterclaim is not based on the facts involved in the plaintiffs cause of action.
    Motion by one defendant to strike out part of an answer of another defendant which seeks to set up a counterclaim or cause of action against the moving defendant.
    
      A. R. Watson, Corporation Counsel (Frank B. Pierce, of counsel), for plaintiff.
    Paris S. Russell, for defendant.
   Pendleton, J.

This is a motion by one defendant to strike out the part of an answer of another defendant which seeks to set up a counterclaim or cause of action against the moving defendant.

The action is brought by the city of Yew York to have the tracks in Fulton street declared a nuisance and enjoin the maintenance thereof. It was held in the decision on the demurrer herein that this action was in effect to have these tracks declared a nuisance and to abate the same; and anything else in the complaint is a surplusage and may be disregarded. The bondholders of the Fulton Street Railroad Company, in the second subdivision of their answer, seek a judgment against defendants Joline and Robinson, receivers of the Metropolitan Railroad Company, compelling them to put the tracks in repair, and base their contention on the provisions of the old lease or agreement of the Fulton Street Railroad Company with the Metropolitan Street Railroad Company. It is this second subdivision of the bondholders’ answer which the receivers, the moving defendants, seek to have stricken out. The motion is resisted under section 521 of the Code, allowing judgment between separate defendants, and section 1204, providing for judgment to settle rights between defendants.

Assuming, for the sake of argument, that the agreement be- . tween the Metropolitan Company and the Fulton Street Railroad Company obligated the Metropolitan Company to put the streets in repair and that the receivers are obligated thereunder, this is an entirely separate and independent matter disconnected with the present suit. Section 521 provides that, where the judgment may determine the ultimate rights of two or more defendants as between themselves, a defendant who requires such judgment must demand it; and section 1204 provides that the judgment may determine the rights of the parties on the same side as between themselves; but this case is not within those provisions.

•Section. 521 refers to cases where the judgment sought by the plaintiff may determine the rights as between defendants. The judgment sought in this action could not determine any rights between these defendants. The action was by the city to abate the continuance of a nuisance, the only question was as to whether the tracks were a nuisance, and the only necessary parties were the city and those maintaining the alleged nuisance. ■ The bondholders of the Fulton Street Railroad Company were not necessary parties, and of course their rights'as between them and the Metropolitan Company or its receivers could not be involved or determined by the judgment sought by plaintiff. In Kay v. Whittaker, 44 N. Y. 575, it was held that section 521 of the Code only applies where the claim by one defendant" against the other is in reference to the claim made against them by the plaintiff and as part of the adjustment of that claim, and it must be based upon the facts involved in and brought out by the litigation and investigation of plaintiffs cause of action. Such is plainly not this case. Plaintiff’s claim is only that the tracks in their present condition are a public nuisance; why or by Avhosé fault or on whom any obligation rests is not involved. If plaintiff were seeking to enforce some obligation to repair a different question would be presented.

The bondholders were not necessary parties to this litigation and were not made defendants and not strictly entitled to be heard. They of their OAvn motion asked to intervene and to be heard as to the cause of action brought by plaintiff. To allow them now to take advantage of this position to interject into this litigation an entirely new and independent alleged claim in their favor against the original defendants would be a most anomalous proceeding for even the Code of Civil Procedure, and is, I think, entirely unwarranted and unsupported by authority. This is not an action to forfeit a franchise for non-user or otherwise; this the city under the Bryan case cannot do. It is simply to remove an incumbrance and nuisance from the streets. Any rights the bondholders may have against the Metropolitan Railroad Company or its receivers could have been heretofore and may still be prosecuted. Having so far failed to do so is no reason why they should now ask that the city’s effort to remove an incumbrance from the streets should be delayed until they can prosecute some alleged claim against the receivers. Any rights they may have against the latter are not defeated by this proceeding.

Motion granted; ten dollars costs.  