Gerlach

The instant appeal is taken by Affiliated Vendors, Inc. (“Affiliated Vendors”) from an order denying leave to intervene in an action commenced by Fireman’s Fund Insurance Company Fund”) against defendant Gerlach, who did business under the name of Golden State Vending Service Inc.

The facts are undisputed.

Affiliated Vendors sold vending machines to Gerlach who stored them in a building which, with its contents, was covered by a fire insurance policy written by Fireman’s Fund. Thereafter, at a time when the vending machines had not been paid for, a fire broke out in the building causing destruction to some, and damage to other, of the machines. Gerlach promptly made claim against Fireman’s Fund for the loss. The claim was followed by the instant action in which the insurance company, alleging that Gerlach had himself started the fire, sought a judicial declaration that it was not liable for any part of the loss. Although served with summons and complaint in the action, Gerlach did not appear therein, and his default was taken. Judgment, however, has not been entered on the default. •

In another action Affiliated Vendors has obtained judgment against Gerlach and the…