Eliza J. Flamm, Appellant, Impleaded with Peter J. McNulty, v. Clarence S. Perry and Others, Defendants, Impleaded with Charles F. Mills, Appellant; Samuel W. Northridge, Respondent

Eliza J. Flamm, Appellant, Impleaded with Peter J. McNulty, v. Clarence S. Perry and Others, Defendants, Impleaded with Charles F. Mills, Appellant. Samuel W. Northridge, Respondent. Partition suit — conditions imposed on allowing a judgment creditor, whose judgment was recovered since the action began and was proved before the referee therein, to become a party thereto. A person who, after an action to partition real property had been begun and the lis pendens had been filed, had recovered a judgment against one of the defendants in such action, proved his lien before the referee appointed in the partition suit to ascertain liens, who allowed it. After the interlocutory judgment had been rendered, he made a motion to be made a party to the action, alleging, among other things, that certain unlawful payments were to he made out of the proceeds of the sale which would use up the fund applicable to the payment of his judgment, and that he desired to be heard on the form of the decree and the disposition of the proceeds of the sale. The court granted the motion unless all parties would consent to a rehearing of the final order. The other parties refused to consent to such rehearing and took an appeal from the order. Held, that, under the circumstances, the lienor should not be given a free hand to litigate those questions which had been or could have been properly heard and determined on the reference, but that he was simply entitled to have a day in court upon the settlement of the final order; That, even if the Special Term had, in terms, made the lienor a party, it could have limited his rights, lest he should be afforded a second day in court as to matters which were or could have been determined on the hearing before the referee or the subsequent proceedings thereupon. Appeal by the plaintiff, Eliza J. Flamm, and by the defendant, Charles F. Mills, 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 25th day of October, 1902, granting a motion made by Samuel W. Horthridge to be made a party defendant. This is an action for partition begun in 1899. Horthridge, in June and July, 1901, became a judgment creditor of the defendant Wilkins and her successor in interest, Perry. His liens were proved before the referee to ascertain liens, and were allowed. The action proceeded to interlocutory judgment in February, 1902. Horthridge moved at Special Term, in October, 1902, that he should be made a party defendant to the action, on affidavit that as the action then stood his judgment would not be paid from the proceeds of the sales, inasmuch as such proceeds were insufficient to satisfy prior liens and said judgment in full; that the proceedings were irregular; that injurious provisions had been made in orders and decrees, stating that he desired to be heard on the form of the. decree and the disposition of the proceeds of the sales; that he had good and valid objections to the decree; that it was made without his knowledge or consent, and involved unlawful payments which would eat up the fund applicable to the payment of the liens upon the share of his judgment debtor. Some of the alleged unlawful payments are specified. The affiant further stated that the decree was entered'and signed two or three days before this application,, and that costs were adjudged by agreement without taxation. The motion was met by an opposing affidavit that the referee had distributed all of the proceeds of the sale, about $20,000, save $1,800 that the moving party was guilty of gross lacJies in that he recovered his judgment in 1901; that the judgment herein was entered in February, 1902, with a slight modification on October 10, 1902 It was urged that if Horthridge were made a party he would be entitled to answer and to raise new issues which should not then be permitted, and it was submitted that if the motion were granted, there would, in no event, be proceeds to satisfy the judgments of Horthridge, which were junior liens. The Special Term filed a memorandum that the motion would be granted unless all parties consented to a rehearing of the final order before the justice who made the decree with a hearing accorded to the attorney for the mover. The memorandum further stated that Mr. Horthridge had a lien, and as the order allows $5,241.28, costs and disbursements, out of $18,155, proceeds, the effect of the order was to destroy the lien. The order recited that the motion had been made “ for an order permitting Samuel W. Northridge to come in as a party defendant,” and the mandate was that “said motion be granted * * * unless ” all parties consent within three days of the entry hereof to a rehearing of the final order, with a hearing accorded to the attorney for Northridge, such rehearing to be brought on within ten days on notice of not less than three days, the “ stay contained in order to show cause to continue.” The consent was not forthcoming, hut the various parties to the partition suit appeal. Francis E. Dana, for the appellant Flamm. Charles J. Belfer, for the appellant Mills. Francis B. Mullin, for the respondent Northridge. [MAJORITY — Jenks, J.:] Jenks, J.: The right to move herein was not limited to a party to the action, hut any party in interest who was legitimately prejudiced by the judgment or by the proceeding thereunder might appeal to the discretion of the court. (Matter of Fuller v. Brown, 35 Hun, 162; Gould v. Mortimer, 26 How. Pr. 167, 168; American Ins. Company v. Oakley, 9 Paige, 259; United States Trust Co. v. N. Y., etc., Ry. Co., 6 Civ. Proc. Rep. 90, 94; De Betz's Petition, 9 Abb. N. C. 246, 252; Hackley v. Draper, 60 N. Y. 88; Goodell v. Harrington, 76 id. 547, 549.) But in this case the party in interest did not recover the judgments which constituted his lien until after the partition suit was begun and the Us pendens was filed. He had appeared before the referee, and had filed and proved his lien, which was allowed. He should not, therefore, be made a party on the ground that he was a necessary or proper party to the suit, or with a free hand to litigate those questions which have been or could have been properly heard and determined before the referee, and which are or could have been disposed of by his report and the entry of judgment thereupon. (Code Civ. Proc. §§ 1561, 1562, 1577, 1578.) In Deen v. Milne (113 N. Y. 303) the court say that American Ins. Company v. Oakley and Gould v. Mortimer (supra) proceed upon the assumed validity of the judgments, and in United States Trust Co. v. N. Y., etc., Ry. Co. (supra), Daniels, J., citing Gould v. Mortimer (supra), said that a party in interest, though not a party to the action, may apply to the court for that degree of protection which his interests require should be extended to him. The application is to the discretion of the court, and the learned Special Term evidently intended to provide only that Northridge might be heard as if afforded a hearing upon the coming up of the final order, inasmuch as the court would have denied the motion if the parties had consented to a rehearing, and, in effect, said that such rehearing was right for the reason that the provision for costs and disbursements in the final order destroyed the lien. Therefore, the order entered at most should have granted that for which general consent from the parties was not forthcoming, namely, a day in court for Northridge upon the settlement of the final order. I think that the learned Special Term could have limited the rights of Northridge, even though it had in terms'made him a party. It has even been held that in proceedings based upon section 452 of the Code of Civil Procedure this may be done. (Wall v. Beach, 20 App. Div. 480.) Not only should the order be thus modified, but it should limit the hearing lest it afford to Northridge a second day in court as to matters which were or could have been determined on the hearing before the referee, or the subsequent proceedings thereupon. I think that this court should not undertake to dispose of the merits upon this appeal, but should limit its decision to affirmance of the order that affords a rehearing. If the decree were improper or erroneous, it were better that the court which made it should pass upon it in the first instance. (Wilson v. Barney, 5 Hun, 257, 260.) The order should be modified in accordance with this opinion, and, as modified, affirmed, without costs. Goodrich, P. J., Bartlett, Woodward and Hirschberg, JJ., concurred. Order modified in accordance with opinion of Jenks, J., as modified affirmed, without costs.