KELSEY a. MURRAY

KELSEY a. MURRAY. Supreme Court, First District; Chambers, January, 1865. Pasties.—Cause of Action. Third persons should not be permitted to intervene and be made parties to a pending suit, upon their own application, unless their presence is necessary for an entire adjudication of the questions between the original parties. An action to recover wharfage is not an action for the recovery of real or personal property ; and persons claiming to own the wharf are not necessary parties to an action for wharfage. A claim to the ownership of a wharf, or for the possession of a wharf cannot properly be tried in an action between third parties for the wharfage. On the petition of Ward & Gove, a motion was made before this court for an order compelling the plaintiff to amend his-, proceedings, by making them parties-defendant in this action. Charles Kelsey, the plaintiff, owner of a certain addition to a pier at the foot of Sedgwick-street, Brooklyn, commenced an action against Robert Murray, U. S. Marshal, to recover of him certain sums of money received by him as such marshal, to the use of the plaintiff, for the wharfage of vessels held in custody by the marshal, as prizes, which vessels lay moored at a certain addition to a pier at the foot of Sedgwick-street, Brooklyn, during the time the plaintiff had been in possession thereof. The claim was over $5,000. The defendant answered in substance that he had received, and held in his hands, for the wharfages aforesaid, $3,386; and also admitted that such wharf-ages accrued for the occupation of the addition to the pier set forth by a diagram in the complaint; and that all of said wharf-ages accrued since the 22d day of January, 1862. But the defendant alleged that the plaintiff had no right to receive said moneys in consequence of a lease of the wharf made by him to Ward & Gove, and which was unexpired at the time said wharf-age accrued. ;■ To the petition on the motion the plaintiff replied— 1st. That on the 23d day of January, 1862, by an adjudication between him as landlord, and Ward & Gove and Morris as tenants, the latter were ejected from said addition to said pier for non-payment of rent, and on said day and thereafter the plaintiff was put in possession of said addition to said pier, and has ever since remained in possession thereof, and this suit is brought to recover merely the wharfage of vessels lying moored to said addition to ¡said pier while he had so been in possession. 2d. That such adjudication was appealed from, and was by the general term of the second district affirmed in September, 1862, since which time, over two years, no appeal to the Court of Appeals has been-taken. 3d. The plaintiff had been so annoyed by the conduct of Ward & Gove in interfering with him in the collection of his wharfage for that addition, that he had tiled a complaint and obtained an injunction restraining Ward & Gove from inter-meddling with him in the collection of his wharfage, which injunction was still absolute and unrepealed ; and that the motion was a violation of that injunction, and Ward & Gove were seeking to obtain the aid of this court by procuring an order to be made parties in this suit. Mr. Sanxay, for the motion. Mr. McMahon, opposed. I. The plaintiff must succeed on his own right and title to the wharfage in question. The proper issue of an outstanding lease is made by the defendant’s answer; so that unless the plaintiff proves a superior right to those ■ wharfages over his lessees, Ward & Gove, he must fail in his action. There is no reason, therefore, for- allowing Ward & Gove to be made parties. II. The defendant, Robert Murray, has lost, by answering, the right he had to substitute Ward & Gove in.his place as defendants under section 122 of the Code. He does not make this motion. It is made by strangers to the cause. The court will not order new parties to be brought in, even qn motion of a defendant, as co-defendant against the will -of the plaintiff, unless their presence is necessary to the determination of the action. (Sawyer a. Chambers, 11 Abbotts' Pr., 110.) III. This action is not one for the recovery of real or personal property. It Is only in those classes of actions that a stranger to the record may move the court to be brought in by amendments as parties. (See Judd a. Young, 7 How. Pr., 79; Tallman a. Hollister, 9 Ib., 508.) IV. The absurdity of bringing in Ward & Gove as parties-defendant may be seen from the fact, that if brought in as defendants, we can pray no relief as against them, for our claim for relief is against the marshal who owes the money. It would be improper to have them made parties to this suit to settle their rights to this addition to the pier in question, and to the wharfages, inasmuch as that has already been settled by an adjudication of a competent tribunal, which adjudication has been duly affirmed by an appellate court, and the time to review this last decision has gone by. (People a. Kelsey, 38 Barb. S. C. R., 269.) Y. It is also improper to make them parties in order .to settle their rights to any portion of the wharfage the plaintiff claims, inasmuch as in the event of its being determined that they are entitled to a portion of the wharfage, they as defendants can .get no judgment against their co-defendant for their share of the wharfage. YI. The petitioners, Ward & Gove, are now under injunction, restraining them from intermeddling with Mr. Kelsey’s collection of his wharfage for that addition, or asserting any right thereto. This motion., if granted would be a direct violation of that injunction-order. Their rights will be abundantly protected, because, on the trial of this issue, if this court find it necessary in order to have a complete determination of this controversy to bring in Ward & Gove, it must be done, but it cannot be anticipated before the trial is had, and the court so see. [MAJORITY — Ingraham, P. J.] Ingraham, P. J. —This is an action for wharfage. The amount due is admitted. The only question is whether the plaintiff is entitled to recover. Kelsey was the proprietor of the pier as originally built, and leased it to Ward & Gove. During the lease the plaintiff built, adjoining the outer end of the pier, an additional pier, which deprived Ward & Gove of the use of that side of the original pier. The wharfage accrued from vessels lying alongside of the new pier. Ward & Gove move to have the plaintiff amend his proceedings so as to make them parties to this action: 1st. It is not necessary for an entire adjudication of the question between plaintiff and defendant, that these persons should be admitted as parties. All the matters claimed by them can be set up as a defence to the plaintiff’s claim, and unless the plaintiff establishes his title to the wharfage he cannot recover. 2d. If neither the plaintiff nor defendant have asked to have Ward & Gove made parties, they have no right by which they can ask to be made parties for the settlement of a claim of the plaintiff against the defendant. 3d. I do not think an action to recover wharfage can be said to be an action for the recovery of real or personal property. It is for a mere money demand. If an action to recover moneys claimed to be due, is to be considered an action for the recovery of personal property, then third parties may, in all actions on contract, seek to be brought in as parties to such actions where they have a claim adverse to the plaintiff. Such was not the intent of the 122d section of the Code, but it is confined to the recovery of real or specific personal property, but not to an action for the recovery of money. 4th. If it were necessary to pass upon the question whether Ward & Gove have any right to this wharfage, I should hesitate before expressing my opinion to that effect. A similar question arose in the case of Marshall a. Guion (1 Kern., 461, 476), where a proprietor of a wharf claimed a right to the wharfage upon an extension of the original wharf. Dismo, J., says, “If there has been an invasion of the rights of the proprietor in that respect (by destroying the power to collect wharfage at the end of the pier), the law provides an appropriate remedy. That*remedy does not consist in vesting in the proprietor of the rights taken away similar rights arising at another place, and which may be of a very different value from those of which they had been deprived;” and, again, “ the proprietor cannot make title to any part of the extended pier, or to any right of wharfage arising upon it.” When Ward & Gove were dispossessed of their possession in; the added wharf) they ceased to have any claim to wharfage. The motion is denied, with $10 costs.