Westinghouse, Church, Kerr & Company, Respondent, v. Edward G. Wyckoff, Defendant; Remington Salt Company, Appellant

Westinghouse, Church, Kerr & Company, Respondent, v. Edward G. Wyckoff, Defendant. Remington Salt Company, Appellant. Buie that the court cannot in an action at law compel the plaintiff to bring in other parties, enforced. • In an action brought against the indorser of á promissory note to recover thereon, the court has no power, against the will of the plaintiff, to allow the maker of the note to intervene in the action for the purpose of litigating the question whether there had been a failure of the consideration for the note. The rule that the plaintiff in an action at law cannot be compelled to bring in any other parties than those he has chosen- to bring in, is not limited to those cases, in which the merits of the controversy require that no further parpes shall be brought into the action. Appeal by the Eemington Salt Company from an order of the Supreme Court, made at the Tompkins Special Term and entered in the office of the clerk of the county of Tompkins on the lith day of January, 1903,. denying a motion made by the said Eemington Salt Company to intervene in the above-entitled action and to be allowed to come in and defend the same-. This action is brought against the defendant on a promissory note made by said Eemington Salt Company and indorsed by said defendant. The Eemington Salt Company alleges that there was a total failure of the consideration for which said note was given by it to said plaintiff. Said company was not made a party defendant in the action, but. desires to intervene and litigate the question as to the failure of consideration for said note as set forth in detail in its proposed answer. J. H. Jennings and William Nelson Noble, for the appellant. Arthur J. Baldwin and Edward. T. Magoffin, for the respondent. [MAJORITY — Chase, J.:] Chase, J.: On the facts in this case we. would reverse the order made at the Special Term and grant the appellant’s application if it had not been held that this court had no power to make such an order. The Court of Appeals has held that' in an action at law . a plaintiff •cannot be compelled to bring in any other parties than those he has ■chosen. (Chapman v. Forbes, 123 N. Y. 532; Bauer v. Dewey, 166 id. 402.) The learned counsel for the appellant does not deny that this is an action at law, but contends that the cases cited should mot be deemed controlling except where the merits of the controversy require that no further parties should be brought into the ^action. Such a limitation would be an effectual destruction of the rule itself. If said rule adopted by the Court of Appeals is to be modified and limited in its application, such modification and limitation should be stated by that court. The order appealed from should be affirmed, with ten dollars costs and disbursements. All concurred. ■Order affirmed, with ten dollars costs and disbursements. •