Tirpaeck v. Sweet

Taylor, J.

The order denying defendant’s motion to make respondent Pearson a party defendant should be affirmed, with ten dollars costs and disbursements. There is no claim that any relation exists between defendant and respondent Pearson other than that of joint tort feasors. Therefore, unless section 211-a of the Civil Practice Act (as added by Laws of 1928, chap. 714) indicates a contrary holding, the application to bring in Pearson was correctly denied. (Greenhouse v. Rochester Taxicab Co., 218 App. Div. 224.) The statute cited is presumptively prospective in operation (Jacobus v. Colgate, 217 N. Y. 235, 240), and by its terms operates prospectively only. It became operative after this plaintiff’s right of action accrued. It affects substantial rights of tort feasor defendants inter sese (Haines v. Bero Engineering Construction Corp., 230 App. Div. 332, 333) rather than mere procedure. Even “ the grant of a remedy where none of any kind was available, is equivalent in substance to the creation of a cause of action.” (Jacobus v. Colgate, supra.) But this statute goes further than to grant a secondary privilege of utilizing a remedy originally existing in a.n injured person. Whenever a money judgment is recovered against two or more tort feasor defendants jointly, the section creates a new right of action which did not exist before in favor of a joint tort feasor who has been compelled to pay more than his share — not merely an additional remedy for the enforcement of an existing right (Laird v. Carton, 196 N. Y. 169) — and subjects other joint tort feasors to added jeopardy as to their property rights. (See Deutscher v. Cammerano, 230 App. Div. 867, and Bargeon v. Seashore Transportation Co., Inc., 196 N. C. 776, 777.)

All concur, except Sears, P. J., and Crouch, J., who dissent and vote for reversal on the facts and for granting the motion, in a memorandum. Present •— Sears, P. J., Crouch, Taylor, Thompson and Crosby, JJ.