Kaliske v. Weil

33 N.Y.S. 413, 24 N.Y. Civ. Proc. R. 248, 67 N.Y. St. Rep. 246

Opinion

PRYOR, J.

Action against partners for specific performance of an agreement for a release, and motion to dismiss the complaint for nonservice of summons on a defendant. The order solicited is not authorized by section 821, Code Civ. Proc. Dismissal of the complaint for nonservice of summons on a defendant is warranted only “when a complete determination of the controversy cannot be had” without the presence of such defendant. But counsel for the motion concedes that a release by the defendants served will bind the other. What, then, is wanting to a complete determination of the-controversy? Manifestly nothing. Counsel objects against the injustice of binding a party in his absence, to which the twofold answer is: First, that the defendant not served might, nevertheless, have voluntarily appeared in protection of his rights (Waffle v. Vanderheyden, 8 Paige, 45; Lumber Co. v. Bissell, 9 Paige, 225; Skinner v. Noyes, 7 Rob. [N. Y.] 228); and, secondly, that the court on the-trial will, if necessary,, direct the absent defendant to be brought in. (Code Civ. Proc. § 452; Powell v. Finch, 5 Duer, 666).

Motion denied, with costs.