
    Eva Gittleman, Respondent, v. Charles L. Feltman and Alfred Feltman, Appellants. Surf Amusement Company, Appellant.
    Second Department,
    November 22, 1907.
    Practice —bringing in defendants in action at law — section 723, Code of Civil Procedure construed—liability of joint tort feasors — effect of judgment against some.
    The common-law rule that the court is without power to bring in additional defendants on the plaintiff’s motion in an action at law has been abolished by section 723 of the Code of Civil Procedure,, which section is not limited to suits ' in equity hut empowers - the court to bring in defendants in common-law .-actions. Hence, a joint tort feasor may be brought in on plaintiff’s motion.
    Section 452 of the Code of Civil Procedure does not restrict the scope of section 723, the former section applying to equity causes only.
    
      Joint tort feasors may be sued separately or together and nothing but the satisfaction of a j udgment against one or more of them, or a release of the causé of' action, will bar an action against the others.
    A judgment against one or nXore joint tort feasors is not res adjiidicata as between the plaintiff, and other joint tort feasors not made parties.
    Appeal by the defendants, Charles L. Feltman and another, and by the Surf Amusement Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of June, 1907, granting the plaintiffs motion to bring in the Surf Amusement Company as a party defendant.
    
      Joseph M. Gazzam, Jr. [William A. Feuchs and Darwin J. Meserole with him on the brief], for the appellants.
    
      John H. Regan [Samuel I. Frankenstein with him on the brief], for the respondent.
   Gaynor, J.:

The complaint is for damages for negligence. On motion of the plaintiff the court at Special.Term has- made an order permitting another party to be brought in as a defendant by amendment of the summons and complaint on the ground, that it is a joint tort feasor. The original defendants and the new defendant appeal.

It is claimed , that there is no power to bring in an additional defendant on the plaintiffs motion in a common law action. This was so under the common law practice; the like Could be done only in equity suits. But apart from conflicting decisions it would seem plain that this is no longer .the rule with us. Section 723 of the Code of Civil Procedure provides in the most comprehensive words that The. court may, upon the trial, or at any other stage of. the action, before or after judgment, in furtherance of justice, and on such-.terms as it deems jiist, amend any process, pleading-or other proceeding, by adding or striking out the name of a person as a. party, .or by correcting a mistake in the name of a party ”, etc.

There is no ground -for stating that the legislative intention was that this • broad provision should apply to equity suits only. The words" used, and also the society in which the said section is found, attest the contrary. •

Section 452 in no way restricts the scope of section 723. The former provides as follows: “ The court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saying their rights; but where a complete determination of the controversy cannot be had without the presence' of other parties, the court must direct them to be brought in.” . The rest of the section is confined to allowing an application by a person not a party to be made a party, and is therefore not applicable to our case. It is obvious that in an action at law against one or some of several joint tort feasors, the controversy may be determined as between the parties', before the court, i. e., the plaintiff and the defendants, and without prejudice to the rights of others”. The judgment will completely determine the controversy between them, and will not be res adjudicate between the plaintiff and any of the joint tort feasors who is not a defendant and may be sued later — for joint tort feasors may be sued separately or together, and nothing but the satisfaction of a judgment against one. or more of them, or a release of the cause of action, will bar an action against the others. Therefore this provision cited from section 452 could have no application to our case. Moreover its adoption in the Code was only, the continuance of an equity rule, and it continued to apply to equity cases only (Chapman v. Forbes, 123 N. Y. 532 ; Rosenberg v. Salomon, 144 id. 92). It is also mandatory in terms, for the reason that it applies to cases where a complete determination' of the controversy cannot be had without the presence of-others as parties; whereas section 723 is discretionary, and not restricted to equity cases where the thing has to be done of necessity.. The latter is meant for common law actions, where the controversy between the parties can .be completely determined, and without prejudice to the rights of others, which is not always so in suits in equity.

In the first judicial department it is held that an additional defendant cannot be brought in on motion of the plaintiff in an action in tort (Horan v. Bruning, 116 App. Div. 482), but that it can be done in an action on contract (Haskell v. Moran, 118 id. 810). I think it must be admitted that the language and purpose of the said section admit of no such distinction. It is not expressed, nor is there any intention" of it manifested- in any way. In the third and fourth Judicial Departments it is- held that it cannot be done, the decisions being in. tort actions (Heffern v. Hunt, 8 App. Div. 585 ; Ten Eyck v. Keller, 99 id. 106); In this judicial Department it was held in one tort action that it could he' done, and in .another that it could not (Schun v. Brooklyn Heights R. R. Co., 82 App. Div. 560 ; Goldstein v. Shapiro, 85 id. 83).

In ■ this contrariety of ■ decision' it would seem that the question might to he reconsidered, and that the beneficial and remedial provision of section 723 should not be so construed as to deprive' it of its chief value and frustrate the liberal intention of its framers. It can do no harm, .but can do much good to allow additional defendants to be brought in on motion of the 'plaintiff "in common law actions, whether on contract or in tort. We have express statute authority for- it and no reason against it, and it should be done.

The order should be affirmed.'''

WoopwABDj, Rich and Millee, JJ., concurred; Hibsghbebg, P. J„ not voting'. '

Order affirmed, with ten dollars .costs and disbursements.  