Kaliske v. Weil

New York Court of Common Pleas

Kaliske v. Weil

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

CourtNew York Court of Common Pleas

DecidedFebruary 15, 1895

StatusPublished

Cited by1 cases

This text of 33 N.Y.S. 413 (Kaliske v. Weil) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kaliske v. Weil, 33 N.Y.S. 413, 24 N.Y. Civ. Proc. R. 248, 67 N.Y. St. Rep. 246 (N.Y. Super. Ct. 1895).

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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.

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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.

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Bluebook (online)

33 N.Y.S. 413, 24 N.Y. Civ. Proc. R. 248, 67 N.Y. St. Rep. 246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaliske-v-weil-nyctcompl-1895.

Opinion

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