Joy v. White — 22 Abb. N. Cas. 304

Majority

p. 304

JOY v. WHITE.

N. Y. Supreme Court, First District, Special Term and Chambers ;

January, 1889.

Headnote

1. Pleading.] A defendant, who has not been served with summons and cannot be subjected to the jurisdiction by attachment, cannot he required to litigate a question with a co-defendant by the latter serving upon him a copy of his answer, under Code Civ. Pro. § 521.

James F. Joy and others as a purchasing committee of The Wabash, St. Louis, etc., By. Co. sued Alexander M. White and Henry H. Warden, individually and as trustees, and Frank G. Griswold and George G. Griswold, Jr., as executors, etc. of George Griswold, to recover possession of railroad bonds of which the defendants were trustees.

The defendant Warden was not served with the summons in the action, and upon the consent of the attorneys for the plaintiff and defendants, executors, and the defendant White, an order was obtained giving the defendant White, leave to serve a copy of his answer by mail upon the defendant Warden, pursuant to Code Civ. Pro. § 521. Warden now moved to set aside that order.

Fdward Jjymam, Short {Davies <& Rapallo, attorneys), for the motion.

Robert C. Tapiar, for defendant, White, opposed.

The defendant Warden has not been personally served, and no attachment has been, or can be, issued against his property. The plaintiff, therefore, cannot obtain a judgment which will bind him or his property.' Even if Warden had been personally served, I should have some doubt whether, if the plaintiffs succeeded, the rights and liabilities of the defendants, as between themselves,

p. 305

could be litigated in this action ; the decision of the court of appeals in Kay v. Whittaker ( 44 N. Y. 565 ), seems to-indicate that they could not. In such case, however, the-determination of that question could be left to the trial’ court. But, as the plaintiff cannot- obtain a judgment' which will bind him, or his property, I do not think he can-be compelled to litigate questions which may arise between - himself and White if plaintiffs get a judgment against the latter, by service of White’s answer, pursuant to the order" which was made under section 521 of the Code. Warden has a right to have this question determined now, for lie-should not be put to the expense and trouble of litigation when he has not been properly brought in. The motion to vacate the order of October 22, 1888, is granted, with $10 costs.

Ordered accordingly.

Cases cited

Kay v. Whittaker 44 N. Y. 565 N.Y. Comm'n App. 1871-09-12 p. 305