The action was commenced against Frithiof Anderson, as sole defendant, to recover damages for a personal injury by the service of a summons and complaint on the 4th day of August, 1905. On the 6th day of April, 1906, on application of the plaintiff, consented to by the defendant, an order was entered allowing the plaintiff within thirty days from the date of the order to serve a supplemental summons and amended complaint, a copy of which was annexed to the application, upon Henry Brunning, then making him a defendant in the action. On the 7th day of April, 1906, the supplemental summons and amended complaint was served upon Brunning, and he thereupon became a defendant in the action. Subsequent to such service he appeared in the action for the purpose of moving to set aside the order authorizing.the service of the supplemental summons and amended complaint. That motion was granted, and the plaintiff appealed. The original order allowing the plaintiff to amend the summons and complaint was authorized by section 723 of the Code of Civil Procedure. That section provides that “ The court may, upon the trial, or at any other stage of the action, * * * and on such terms as it deems just, amend any process, pleading, or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake -iri any other respect, or by inserting an allegation material *486to the case.” The .parties to the action having, consented. to the amendmént of the summons and. complaint, the party joined became a party to the action to the.same effect as if he had been originally made a party. It is quite probable that this added defendant does not want to be sued, but when the. amended or supplemental summons and complaint was authorized by the court on the consent of all parties to the action, the action as against this added defendant was the same as though he had originally been made a defendant; and I do not see that he had any more right to complain than he would have "had if he had been originally joined in the action. ' An entirely different question would be presented if one of the original parties to the action had objected to the proposed amendment.
Several cases are cited.to sustain the order appealed from, but I do not think they apply. In Heffern v. Hunt (8 App. Div. 585) one of the-original defendants objected to the proposed amendment, and it.was there, held that an original party defendant had a fight to appeal from such an order, and that upon his objection it should not have been granted. In Goldstein v. Shapiro (85 App. Div. 83) the action was in replevin, and the motion to bring in the tiiird party was made on notice to him, and upon an appeal from the order granting the motion by the third .party, it was held, that in such an action, if made a party .to that action, lie was deprived of the benefit of séction 1709 of .the Code .of Civil Procedure, and attention was there called to the case of Schun v. Brooklyn Heights R. R. Co. (82 App. Div. 560), which authorized the court to make‘a third party a defendant in an action to recover for negligence, but it was held that that case did not apply because of the peculiar character ■■ of the action of replevin. The point does, not :seem to have been raised in that action as to the right .of a third party to raise 'the question, and that point Was not'considered, the decision being based entirely upon the nature of the action. Iñ Ten Eyck v. Keller (99 App. Div. 106) the original defendant objected to the order) and he ajipealed. On the other hand, such an order is expressly approved by this court in the second department in Schun v. Brooklyn Heights R. R. Co. (82 App.. Div. 560), and I think it fully justified by the'Code and practice. The action was commenced as against the added defendant when the amended or supplemental complaint was served upon him. Any defense, including the Statute of Lim*487itations, would be as available to him as if the action had been commenced when the amended or supplemental summons and complaint was served. It is the policy of the law that a litigation of this kind should be settled in one action, and I can see no reason why the plaintiff should not have the right to bring the action against such defendants as he may select, so long as the parties to the action, as originally commenced, have no objection.
For this reason I think the order appealed from should be reversed, with ten dollars costs, and disbursements, and the motion denied, with ten dollars costs.
McLaughlin, J., concurred.
Order affirmed, with ten dollars costs and disbursements. Order filed.