(202 N.Y.S.)

He may then have what was his, but not what was to become his on condition of performance by him.

[3] This banking and brokerage firm could not function without confidence of its customers. It is not as a matter of law immaterial that these partners found that plaintiff was a thief, and that he breached the agreement by taking secret profits, speculating in the firm name for personal gain, and procuring money from his partners by fraudulent misrepresentations. This defense raises issues of fact essential to the determination by the court of the question whether the accounting should be only for what was actually due him, or also for damages or future profits. Defendants, moreover, are entitled to have the court pass upon their own prayer for an accounting.

Motion denied. Ordered accordingly.

(121 Misc. Rep. 658)

FELDMAN et al. v. LISANSKY et ux.

(Supreme Court, Special Term, Kings County. October, 1923.) Specific performance 10(2)-Directed against vendor, with abatement of purchase price for dower interest.

Where defendant's wife, uninfluenced by him, refused to sign a deed to the realty in question, specific performance of a contract to sell it may be directed against defendant, with an abatement of the purchase price for the inchoate dower interest.

Action by Abraham Feldman and another against Abraham Lisansky and wife for specific performance of a contract for the sale of land. Judgment for plaintiffs.

Grauer & Rathkopf, of New York City (Charles A. Rathkopf, of New York City, of counsel), for plaintiffs.

James A. Nolan, Jr., of New York City, for defendant Abraham Lisansky.

Joseph A. Hahn, of Brooklyn (Edward Haas, of Brooklyn, of counsel), for defendant Frieda Lisansky.

MacCRATE, J. The answer of the defendant Abraham Lisansky states his readiness to convey to plaintiff and allow an abatement of the purchase price, if fixed rules can be found for determining the amount of the abatement. Notwithstanding the attempts of the defendant to limit the effect of the decision in Bostwick v. Beach, 103 N. Y. 414, 9 N. E. 41, to cases involving vested dower rights, in this department, upon the authority of that case, abatements have been allowed for inchoate dower rights, and the method laid down in Jackson v. Edwards, 7 Paige, 386, 408, for valuing such rights has been followed. Therefore, although the refusal of the wife to sign the deed is her own act, uninfluenced by her husband, in view of the allegations of his answer, the defendant husband will be directed to convey to the plaintiff, subject to her dower right. Moreover, she, on her motion, was taken out of the case. Roos v. Lockwood, 59 Hun, 181, 13 N.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

202 NEW YORK SUPPLEMENT

(Sup. Ct.

Y. Supp. 128, cited by defendant, unmistakably states that specific performance by the husband can be directed. In that case, however, the trial court adopted an improper method to fix the amount of the abatement.

The testimony warrants findings that the wife is now 64 and the husband 66. On those findings, and the further findings that the property is worth the contract price, $8,600, the purchase price should be reduced by the sum of $352.98.

Judgment accordingly.

(121 Misc. Rep. 661)

KAMROWSKI v. KAMROWSKI.

(Supreme Court, Special Term, Kings County. November, 1923.)

Divorce 54-Decree for defendant, proving plaintiff's adultery after condonation of defendant's adultery.

Where, in husband's divorce action, defendant proved condonation of the alleged adultery, and that plaintiff committed adultery subsequent to the condonation, defendant will be granted a decree.

Divorce action by Frank M. Kamrowski against Ada M. Kamrowski. Decree for defendant.

Edward C. Cohen, of New York City, for plaintiff.

William F. McCormack, of New York City (Maurice Brandt, of New York City, of counsel), for defendant.

MacCRATE, J. Plaintiff proved the adultery of the defendant. She, however, proved condonation, and, subsequent to the condonation, plaintiff's adultery.

In an attempt to defeat the counterclaim, plaintiff sought to involve a member of the bar as one of a raiding party. His description of the man who did enter the apartment was so unlike the member of the bar that the entire testimony of plaintiff had to be judged thereby. This, together with the unexplained absence of other occupants of the apartment on the night of the raid, left no room to doubt that he also was unfaithful. Whatever the record discloses, either by plaintiff's proof or defendant's admissions as to her conduct, his condonation. took from the proved adultery its power to bar judgment for her on the counterclaim.

In the following cases may be found vigorous and convincing arguments for a decree in favor of a husband or wife whose adultery has been condoned, when, after that condonation, there is adultery on the part of the one condoning: Seller v. Seller, 1 Swab. & Tr. 482; Cumming v. Cumming, 135 Mass. 386, 46 Am. Rep. 476; Storms v. Storms, 71 N. J. Eq. 549, 64 Atl. 700; Masten v. Masten, 15 N. H. 159; Talley v. Talley, 215 Pa. 281, 64 Atl. 523; Anichini v. Anichini, 2 Curt. 210; Morrell v. Morrell, 1 Barb. 318.

Judgment accordingly.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(121 Misc. Rep. 642)

(202 N.Y.S.)

IRWIN v. NEW YORK TELEPHONE CO.

(Supreme Court, Special Term, Kings County. October, 1923.)

I. Parties 51 (2)-Court has discretion to permit bringing in as party third person liable on claim against party in action.

2. Parties

showing merit denied.

Under Civil Practice Act, § 193, subd. 2, as amended by Laws 1923, c. 250, providing that, where a party to an action shows that a third person will be liable for the claim made against such party in the action, the court may order such person brought in as party, the court has discretion to grant or refuse an order bringing in a third person as party, and the order should be refused, unless the application therefor shows merit. 53-Application to bring in third person as codefendant without Where an employer, who was sued for employee's negligence in operating an automobile, moved for an order to bring in the employee as party defendant under Civil Practice Act, § 193, subd. 2, as amended by Laws 1923, c. 250, but the moving affidavit merely stated that in the event of recovery by plaintiff, the employee would be liable to employer, without setting forth any other facts or circumstances, and without submitting further proof, the application should be denied for failing to show merit. Action by Elizabeth Irwin, an infant, by Charles F. Irwin, her guardian ad litem, against the New York Telephone Company. On motions to bring in an additional party defendant. Motions denied.

Leibowitz & Shientag, of Brooklyn, for plaintiff.

Charles T. Russell, of New York City, for defendant.

HAGARTY, J. Both these motions are made by the defendant, under section 193, subdivision 2, of the Civil Practice Act, as amended by the Laws of 1923, chapter 250, in effect September 1, 1923, to bring in, as a party defendant, the defendant's chauffeur. The actions are brought to recover damages resulting from the defendant's negligence in the operation of an automobile. The complaints allege that the automobile was operated at the time by one of the defendant's employees. The secretary of the defendant submits an affidavit alleging that the employee operating the car at the time of the accident was one George Rohn, the party sought to be made a party defendant. The notices of motion, with the accompanying affidavit, were served upon the plaintiffs and upon the said Rohn. No appearance was made by Rohn. The defendant's secretary, in his affidavit, also alleges that he has been advised by counsel that, in the event of a recovery by the plaintiffs, Rohn will be liable to it, within the meaning of the language of the section of the Civil Practice Act, under which these motions are made. No other facts or circumstances are set forth in the affidavit nor is any further proof submitted. Defendant claims that, upon the naked showing of the existence of a claim on which a third party is liable to the moving party, the case necessarily comes within the meaning of the section as amended, and "it would be an abuse of the discretion reposed in the court to deny the motion," to quote from its brief submitted.

[1] Before the amendment of 1923, section 193 of the Civil Practice Act provided that:

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 202 N.Y.S.-6

"Where one of the parties to an action claims that a person not a party thereto is or will be liable wholly or in part, for the claim made against him in the action, the court on application of such party must direct such person to be brought in and direct the service upon such person of the pleading, alleging the claim against him."

This section was construed by the Appellate Division of this department in March of this year (Fedden v. Brooklyn Eastern District Terminal, 204 App. Div. 741, 199 N. Y. Supp. 9), and it was there held that a master, who is sued for his servant's negligence, for which the servant is personally liable to the master, has an absolute right on motion to have the servant brought in as a codefendant. After this decision was rendered, the section was amended (Laws 1923, c. 250, in effect September 1, 1923) by striking out the part above quoted and substituting there for the following:

"Where any party to an action shows that some third person, not then a party to the action, is or will be liable to such party wholly or in part for the claim made against such party in the action, the court, on application of such party, may order such person to be brought in as a party to the action and direct that a supplemental summons and a pleading alleging the claim of such party against such person to be served upon such person and that such person plead thereto, so that the claim of such moving party against such person may be determined in such action, which shall thereupon proceed against such person as a defendant therein to such judgment as may be proper."

It is apparent that this amendment was made as a direct result of the decision in the Fedden Case. For instance, Mr. Justice Kapper in the opinion says:

"Of course, it is not to be assumed that, where an employee is made a codefendant with his employer on the latter's motion, the rendition of an inconsistent verdict would be permitted. The rights and liabilities of the parties remain as the settled law requires."

Compare this to the last clause of the section as amended. But the change of the word "must" to "may" is of vital importance. What was the intention of the Legislature in passing this amendment? If counsel for the defendant is correct in his argument that a denial of this motion would be an abuse of discretion by the court upon the presentation to it of the identical facts and circumstances disclosed by the Fedden Case, then the action of the Legislature was an idle ceremony, the amendment meant nothing, and the word "may" is to be construed as meaning "must." But the Legislature did mean to invest the court with discretion, and that discretion was meant to be exercised in each particular case. It was not intended that this relief should be granted as a matter of right, merely upon showing that the party sought to be brought in as a codefendant was liable to the moving party in the event of a recovery against it.

An amendment was adopted, in 1910, to the General Rules of Practice, as a result of which rule 23 read as follows:

"All motions for relief to which a party is not entitled as matter of right shall be made upon papers showing merits, and the good faith of the prosecution or defense, which may be shown by any proof that shall satisfy the court."

(202 N.Y.S.)

Prior to this time, the rules did not provide for papers showing merit in applications for relief to which the party was not entitled as a matter of right. In the present Civil Practice Rules there is no rule containing the provisions of rule 23 of the General Rules of Practice. That rule has no successor. It was surplusage. It never was, and is not now, necessary. It was merely declaratory of an obvious principle of practice. Applications addressed to the discretion of the court always were and now are made upon papers showing merit.

[2] The defendant's moving papers do not show merit. While the third party is liable to the defendant for any recovery that may be had by the plaintiff in this action, no reason has been advanced for bringing him in as a party defendant to this action. The defendant is directly responsible to the plaintiff for the negligence of its servants. The plaintiffs have elected to assert their claims against the defendant alone, and, in the light of the amendment, as was said by Mr. Justice Kelly in his dissenting opinion in the Fedden Case, they "should be allowed to try it without the delay and the confusion resulting from litigating the rights of others depending on other facts and other rules of law." This should be the rule, unless the defendant shows merit in its application in each case, a good and sufficient reason for the granting of its motion. Motions denied, with $10 costs. Ordered accordingly..

(207 App. Div. 122)

BARNES v. CARY.

(Supreme Court, Appellate Division, Second Department. November 2, 1923.) Guaranty 105-Coguarantor, paying note, can recover contribution, notwithstanding extension of note.

Plaintiff and defendant jointly and severally guaranteed that corporation would pay its 90-day note at maturity and would return to owner Liberty Bonds pledged as security. Instead of paying the note at maturity, corporation had it extended pursuant to an agreement to which owner of Liberty Bonds was not a party. Plaintiff ultimately paid the note and returned bonds to owner. Held, that plaintiff can recover onehalf of that payment from defendant.

Action by Herbert S. Barnes against Melbert B. Cary. Judgment for plaintiff, and defendant appeals. Judgment unanimously affirmed. The opinion of Geo. H. Taylor, J., at Trial Term is as follows:

At the close of the entire case both sides moved for a direction of a verdict. The defendant moved that a verdict be directed in favor of the defendant. The plaintiff moved for a direction of a verdict in favor of the plaintiff for the sum of $2,097.90, less certain conceded credits of $146.86 and $68.18, respectively, and with appropriate interest adjustments. The plaintiff's motion included a request that a verdict be directed for one-half of the amount of the $4,000 loan and interest, and the amount of the National Liquid Recording Corporation's overdraft at the New York Trust Company. In view of the learning, earnestness, and ability displayed by counsel on both sides, I will set forth briefly the grounds of the determination at which I arrived at the trial, and to which I have adhered after considering the able briefs submitted by counsel for the respective parties.

The National Liquid Recording Corporation on April 15, 1921, entered into an agreement in writing with Jennie W. Archer, whereby, in consideration of the loan of certain Liberty Bonds, of the par value in the aggregate of For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes