§ 1014.Proposed intervention pleading

The common law courts were opposed to a third person intervening in an action, which was regarded as a private contest between the original parties. Intervention was allowed, however, in equity, which borrowed the device from the civil, ecclesiastical and admiralty courts. A narrow type of permissive intervention in actions for the recovery of real or personal property was added by amendment to the Field code in 1851. This was broadened somewhat in 1876. There was a further enlargement in 1901, extending the procedure to cases where the intervenor had an interest in real property for injury to which the complaint demanded relief. As so amended, the provision became part of CPA § 193 in 1920.

In 1945, the Judicial Council concluded that the state provisions for intervention were too narrow, mainly because there was, in general, no right to intervene in an action for money and because confusion had resulted from the absence of a provision outlining the proper procedure in intervention. See 11 NY Jud Council Rep 59, 396 (1945). A proposal for amendment was made, closely following Federal rule 24 both as to scope and general language. This proposal was adopted in 1946 (NY Laws 1946, c. 971) and became CPA § 193-b.

In its provision for intervention of right, CPA § 193-b included cases “(c) when the applicant has an interest 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.” This language comes from the earlier New York statutory provisions and has no counterpart in Federal rule 24. It adds to the length of the intervention provision and is unnecessary. See Hatch v Turner, 282 App Div 818, 123 NYS2d 285 (3d Dept 1953); Town of Brookhaven v Town of Smithtown, 285 App Div 1172, 140 NYS2d 706 (2d Dept 1955). Another reason for elimination of this matter is that the specific enumeration weakens the scope of the provision for intervention of right. Thus, it could be argued that if the quoted words were retained there would be no intervention of right in actions for recovery of, or for injury to, personal property.

Most of the cases decided under the 1946 amended provision have been liberal in allowing intervention. Onondaga Co. Water Auth. v N. Y. Water Service Corp. 285 App Div 655, 139 NYS2d 755 (4th Dept 1955) (statutory intervention of right); Town of Brookhaven v Town of Smithtown, 285 App Div 1172, 140 NYS2d 706 (2d Dept 1955) (permissive); Hatch v Turner 282 App Div 818, 123 NYS2d 285 (3d Dept 1953) (interest in land). See also Donato v American Locomotive Co. 283 App Div 410, 127 NYS2d 709 (3d Dept 1954); cf. His Majesty’s Treasury v Bankers Tr. Co. (Tennent), 304 NY 296, 107 NE2d 455 (1952) (judgment creditor cannot intervene where his debtor was in default as a claimant to money paid into court under CPA § 51-a).

Section 193-c was added to the CPA in 1946 as a part of the same bill which enacted the 1946 intervention procedure; both were the result of the same study by the Judicial Council. Section 193-c was not an intervention statute, however, but rather one requiring joinder of parties in certain actions brought to recover damages for injury to real property. CPA § 193-c has not been applied in any published opinion during the ten years it has been on the statute books. It is adequately covered by new CPLR § 1001 since the persons specified in its first sentence would be necessary parties under that section. The need for the second sentence of § 193-c is unclear since the result it provides for is an inevitable one unless the party joined discontinues without prejudice, and a judge would hardly allow such a discontinuance in this situation. The order to protect an absentee provided for by the third sentence of § 193-c is authorized without such specific provision.

Add, L 1962, ch 308, eff Sept 1, 1963.