Kaliske v. Weil — 33 N.Y.S. 413

Majority

p. 413

(24 Civ. Proc. R. 248.)

KALISKE v. WEIL et al.

(Common Pleas of New York City and County, Special Term.

February, 1895.)

Headnote

Practice in Civil Cases—Dismissal—Nonservice or Summons.

A complaint will not be dismissed for nonservice of summons on one of" the defendants, where a complete determination of the controversy can be had without the presence of such defendant.

Action for specific performance of an agreement for a release. Defendants move to dismiss the complaint for nonservice of summons-on one of the defendants.

Denied.

Edwin T. Taliaferro, for plaintiff.

Holcomb & Martin, for defendants.

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.