SECOND DEPARTMENT, JUNE TERM, 1903.

[Vol. 85. ship and such like religious uses as are a source of strength to the body politic. The learned counsel for respondents argues that could private piety obtain exemption from public taxation, then an altar would be erected in every household and prayers daily ascend from every home.

This ingenious and novel claim is not substantiated by the facts in this case. Although it is true that relator was incorporated under the name borne by the unincorporated religious order, and although its members, officers and many of its employees are members of said order, nevertheless it conclusively appears from the evidence that the two now are, and always have been, distinct, separate and mutually independent organizations. It also appears that relator was in good faith exclusively organized for the performance of certain purposes within the purview of the statute, and that it exclusively uses the property in question for educational purposes. So, too, practically all the time of those sisters of the unincorporated religious order, who are engaged in performing relator's educational work, is devoted to the performance of that work. The fact that as individuals they also recognize and perform certain religious duties cannot have any bearing on the issues involved in this case. The question whether or not passive private religious uses are included within the purview of the statute, while an interesting one, need not be determined here, inasmuch as relator's claim to exemption is based on educational and not religious uses. Nor it may be said could any family by merely conducting religious exercises in the home raise a question regarding its right to the exemption conferred by the statute, without first becoming a corporation or association organized exclusively for the performance of those religious exercises.

The parcel of land owned by relator lying east of lands of the West Shore railroad and containing about five and twenty-seven one-thousandths acres, is subject to assessment and taxation, and the fair assessable value thereof is $6,000.

The assessment upon the remainder of relator's property is illegal and unauthorized and should be vacated, with costs of this proceeding to the relator.

App. Div.]

SECOND DEPARTMENT, JUNE TERM, 1903.

CHARLES GOLDSTEIN, Respondent, v. ALBERT SHAPIRO, Impleaded with Others, Defendants.

ALEXANDER FELMAN, Appellant.

Replevin- the court can direct a party to be brought in only in an equity case — a third party filing a claim to the property can be brought in only on his own application.

The 1st paragraph of section 452 of the Code of Civil Procedure, which provides, '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 saving 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," is only applicable to equitable actions. Under the 2d paragraph thereof, which provides, "And where a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, or in real property for injury to which the complaint demands relief, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment," the application must be made by the party to be brought in.

When, after the commencement of a replevin action and the levy under the writ, a third party files a claim to the property with the sheriff, the plaintiff is not entitled, over the objection of the third party, to have the third party brought in as a party defendant.

APPEAL by Alexander Felman 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 8th day of April, 1903, granting the plaintiff's motion to bring in the said Alexander Felman as a party defendant herein and directing that a supplemental summons issue.

Section 452 of the Code of Civil Procedure, which is referred to in the opinion, 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 saving 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.

"And where a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any

SECOND DEPARTMENT, JUNE TERM, 1903.

[Vol. 85. manner be affected by the judgment, or in real property for injury to which the complaint demands relief, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment."

Moses Feltenstein and Lewis Goldberg, for the appellant.

Charles G. F. Wahle, for the respondent.

JENKS, J.:

After the levy, a stranger

The plaintiff complains in replevin. filed a third party claim with the sheriff. Thereupon the plaintiff moved at Special Term for an order to bring in the third party by supplemental summons. The motion was opposed, but the court made the order, and the third party appeals. I think that the order should be reversed. The 1st sentence of section 452 of the Code of Civil Procedure is substantially and almost literally a re-enactment of a part of section 122 of the Code of Procedure. Rosenberg v. Salomon (144 N. Y. 92) decides that so much thereof applies only to equitable actions, citing Chapman v. Forbes (123 N. Y. 532).

As to the latter part of section 452, additional to section 122 of the Code of Procedure, Chapman v. Forbes (supra) holds: "The person who is not a party to the action, and who has an interest in the subject thereof, must, by the terms of the section, himself make application to be made a party." King Co. v. Seed (6 Misc. Rep. 4) is an authority in point. It is true that the order in the King Co. Case (supra) was obtained ex parte, but the case still presents the feature that the application was made by the plaintiff.

Whether the third party applies or resists, defines an important difference. If he chooses to litigate his title in the action, then he takes the disadvantage incident to his choice. But if he is brought in against his will, he is deprived of the benefit of section 1709 of the Code of Civil Procedure. Nor is it an answer that the plaintiff could have made him a party originally, because if this had been done, the third party would have had the protection of the undertaking, which he now has not, and he could have excepted to the sureties or have reclaimed the property, which he now cannot do. These considerations moved the court in Hochman v. Hauptman

App. Div.]

SECOND DEPARTMENT, JUNE TERM, 1903.

(76 App. Div. 72, 75). On the other hand, I see no cogent reason why this relief should be afforded to the plaintiff. Before the rights of the parties to the suit can be adjudicated, it is not necessary that the rights of the third party be determined, and, therefore, he is not a necessary party to a complete determination of the issues. (See the definition of WOODRUFF, J., in M'Mahon v. Allen, 12 How. Pr. 39, approved in Chapman v. Forbes, supra.)

I think that the opinion of this court in Schun v. Brooklyn Heights R. R. Co. (82 App. Div. 560) does not control the case at bar. Schun's case arose upon negligence, and the court thought that section 723 of the Code of Civil Procedure, in accordance with the dissenting opinion of FOLLETT, J., in Heffern v. Hunt (8 App. Div. 585, 591) and a decision of the General Term of the City Court of New York in Romanoski v. Union Railway Co. (30 Misc. Rep. 830), was broad enough to warrant the relief afforded. This case arises upon replevin, and section 723 is not of such paramount force in this case as to justify relief pursuant to its provisions in disregard of the other sections of the Code of Civil Procedure cited and applied in this opinion.

The order should be reversed, with costs.

GOODRICH, P. J., BARTLETT, WOODWARD and HOOKER, JJ., concurred.

Order reversed, with ten dollars cost and disbursements.

SARAH IRENE LANE, as Administratrix, etc., of CHARLES W. D. LANE, Deceased, Respondent, v. THE BROOKLYN HEIGHTS RAILROAD COMPANY, Appellant.

Negligence-collision between a wagon crossing a railroad at a street intersection and a car going twenty miles an hour· -it presents a question for the jury — failure to look both ways at the crossing, immaterial-$25,000 verdict sustained — newly-discovered evidence, when insufficient.

In an action to recover damages resulting from the death of the plaintiff's intes tate, it appeared that the defendant operated a street railroad on Fulton street, in the present city of New York; that Hoffınan boulevard runs into Fulton street from the southeast, but does not cross it; that a street known as Rose

SECOND DEPARTMENT, JUNE TERM, 1903.

[Vol. 85.

avenue commences on the opposite side of Fulton street and forms a practical continuation of Hoffman boulevard.

It further appeared that at half-past three of the afternoon of the day of the accident, the intestate, in company with a woman, drove along the middle of Hoffman boulevard into Fulton street and across the defendant's tracks; that the rear part of the wagon was struck by one of the defendant's cars and the intestate was killed.

When the intestate was within twenty feet of the track, the car was between two hundred and two hundred and fifty feet distant, and was seventy to seventy-five feet distant when the horse was upon the track. The horse was traveling at an ordinary gait, while the defendant's car was traveling at a speed of twenty miles an hour, which was as fast as it could go. The motorman made no attempt to stop the car until the horse was upon the track, and it was then too late for him to avoid the collision. There was some evidence that the intestate drove upon the tracks without looking either to the right or to the left, but it also appeared that the boulevard approached Fulton street at such an angle as to have enabled the intestate to see the car without turning his head.

Held, that the questions whether the defendant was guilty of negligence and whether the intestate was free from contributory negligence were properly submitted to the jury and that a verdict in favor of the plaintiff should be affirmed;

That a failure to prove that the intestate looked before going upon the track was not material, where the car was at such a distance as to warrant an assumption of safety.

That, it appearing that the intestate was thirty-eight years of age; that he held a life position at an annual salary of $3,300 and that his income was the sole support of his wife and two children, aged eight and twelve years respectively, it could not be said that a verdict for $25,000 was excessive.

Upon a motion made by the defendant for a new trial upon the ground of newlydiscovered evidence, the defendant submitted an affidavit made by the woman who was driving with the intestate, in which she averred that she was driving the horse on the occasion in question; that she had no control over him and that the intestate knew that she could not drive; that she and the intestate were talking and laughing and that neither of them was looking or thinking about the street car tracks and that just before the car struck the wagon, the intestate seized the reins.

Held, that the motion was properly denied, for the following reasons, viz., that it did not appear that the accident was caused by the unskillful driving of the horse; that all of the eye-witnesses to the accident who were sworn upon the trial testified that the intestate himself was driving; that the horse was driven at a steady gait; that the defendant knew the name and address of the intestate's companion before the trial, and that it did not appear that the latter was willing to testify upon a new trial or that the defendant desired or intended to call her as a witness upon such a trial.

GOODRICH, P. J., and WOODWARD, J., dissented.