I cannot concur with Mr. Justice Patterson. It has been expressly held by the Court of Appeals that, but for the last sentence of section 452 of the Code, the court would have no power in an action at law to make any one a party to the action against the protest of the plaintiff. The plaintiff has a right to select those ivhom it will sue, and as it asks no judgment against the moving jiarty and protests against its being compelled to sue him, I do not think that he could be made a party unless, under the express provisions of the' Code, authority is given to allow him to intervene in this action, which is entirely between the plaintiff and the original defendants, its debtors. So much of section 452 of the Code of Civil Procedure as is a literal re-enactment of section 122 of the Code of Procedure applies only to equitable actions. (See Chapman v. Forbes, 123 N. Y. 532.) Upon the enactment of the Code of Civil Procedure, section 122 of the' old Code was inserted as section 452, with the last clause added, and that provision applies as well to legal as to equitable actions. It is there provided that “ 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, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment.” And in Rosenberg v. Salomon (144 N. Y. 92) tliis provision was construed as applying to a person who claims an interest in specific property where a replevin action is brought to recover possession of such property. It was there held that the' applicants in that case, who claimed to be the legal owners of the property, had an interest in the subject-matter of the action, first, to have their property go in discharge of their own debt; and next, to save and retain any possible surplus beyond, and that it was their' title, namely, the applicants’ title, which was involved. This case is certainly no authority for the granting of this application. There the subject of the action was certain specific property. The appli*60cants were the legal owners of the property, and the Court of Appeals held that they had an interest in the subject-matter of the action (namely, the property that the plaintiff sought- to recover). This action is not brought to affect any specific property, but plaintiff seeks to recover a money judgment for the amount of a promissory note made by the defendants Hagemeyer. The defendants Hagemeyer have interposed an answer setting up a defense which, we assume, if established,, will be sufficient to defeat the plaintiff’s .cause qf action-against the defendants. The only judgment that could be rendered in this action would be a money judgment against the original defendants, and it seems to me plain that the moving party has n.o interest in the subject-matter, namely, the right of the plañirtiff to recover a money judgment against the original defendants. By no amendment of the complaint would the plaintiff allege any cause of action- against the respondent. The plaintiff has asked and now asks no relief-against him. • He is a mere volunteer seeking-to interject himself into a controversy that does not concern, him, and where no judgment could be granted either, in his favor or against him. The Code does not give a person who - is interested in the event of an action the right tp intervene, but only to one interested in. the subject of the action involved.
It is a little difficult to understand just what is meant by the term “ subject of the action ” when applied to an action which, under the old system of -pleading, would be an action of debt. It was, how-, ever,' defined by Peckham, J.,. in the case of Chapman v. Forbes (supra) as-“The subject of the action is to obtain payment of the debt due plaintiff from defendant.” And the court cites with approval the decision of Webster v. Bond (9 Hun, 437),. and states that that case held “ that a person- bringing a legal action cannot be cpmpelled to sue any person except such as he may elect to sue.” If this definition of the meaning of the term “ subject o.f the action ” at law is .correct, namely, that it is the right of the plaintiff to obtain payment of the debt .due from -the defendants, then .it -seems to me clear that .this respondent has no interest in. the' subject of this action; in fact, his interests "would be advanced by the • plaintiff’s obtaining the payment of its claim from the defendants rather than by a-resort to the fund- or -property in his possession.. .... - . ....
The case of H. B. Construction Co. v. N. Y. C. & H. R. R. R. *61Co. (145 N. Y. 390) was an action foreclosing a mechanic’s lien, and was decided expressly upon theground that a case arising under the Mechanics’ Lien Law “ is an aCtipn peculiar to .itself and one in which we think it proper that-the. Contractor should be brought in where the plaintiff’s cause of action depends upon the payments made by the owner to the contractor before they were due under the terms of the contract. The existence of the fund upon which the plaintiff depends for its cause of action thus depends upon and arises out of the very subject-matter of the contracts and payments under them, and in such case we think it but fair that the litigation should be ended on that subject in one action.” There was' nothing said in this case as to what was the “subject” of an action at law for; the recovery of money only; and the court, in commenting on the case of Chapman v. Forbes (supra), said that it was there held “ that in an action at law, pure and simple, a plaintiff .could not be compelled to bring in other parties where the determination of the subject-matter involved in the action itself could be completely had between the original parties, and where the judgment in that action would form no obstacle to any claim which a third party might thereafter make against the defendant in that action.” 'It seems to me that this is exactly that case. The judgment in this action will form no obstacle to any claim that a third party, namely, this respondent, may hereafter make against these defendants. Whatever right the plaintiff may have against the original defendants in this action will not expose these defendants to any claim by the respondent against them, the respondent being simply a trustee for the-benefit of- the creditors of the defendants Hagemeyer.
The construction of this section claimed by the respondent would open the door to allow any creditor of the original defendants, or any person who would have am interest in reducing the amount of the defendants’ indebtedness, to be made a party to the action. I do not think that the Legislature could have' had such an intention.'
I think, therefore, that the order appealed- from should be reversed, with ten dollars costs and' disbursements, and the motion denied, with ten dollars costs.
Yah JBruht, P. J., concurred.
Order affirmed, with costs.