Powell v. Finch — 12 N.Y. Super. Ct. 666

Majority

p. 666

Powell v. Finch, and others.

Headnote

In an action against several, for the specific performance of their joint contract, to . purchase real estate of the plaintiff, and secure a part of the price by their bond and mortgage, payable at a future day, all of them must be served with the summons, or appeal in the action, to enable the court to render a judgment'which will be a complete determination of the controversy.

If brought to trial, upon the answers of a part of the defendants only, when the others have not been served with process, or appeared in the action,' the court will not permit the trial to proceed.

At Special Term,

May, 1856.

Before Bosworth, J.

. This action was called in its order on the calendar, and the plaintiff arid the defendants who had appeared in the action, submitted their proofs." The action is brought by the plaintiff, against

p. 667

three defendants, to compel the specific performance of their joint contract, to purchase land of the plaintiff, and pay a part of the price on the day fixed for the delivery of the deed, and secure the balance by their bond, and by their mortgage of the premises in question, payable at a future day. That day had not arrived, at the time of the trial. On its being discovered that only two of the defendants had appeared in the action, and that the third had neither appeared, nor been served with process, the Judge suggested his doubts, whether the action was in a condition to be tried, and to admit of a judgment in favor of the plaintiff, which could be enforced. Opportunity was given to the counsel of either party to refer the court to authorities on the subject.

E. S. Vanwinkle and H. S. Cowdrey, for plaintiff.

D. E. Wheeler, for defendants.

on a subsequent day, held, that the action is not in a condition to be tried. The defendant, who has not appeared, or been served, is not before the court.

A judgment that he execute such a bond and mortgage as the contract calls for cannot, rightfully, be rendered, nor enforced, as against him, if rendered.

A complete determination of the controversy cannot be had, without the presence of the third defendant. Service of a summons upon him, or his appearance in the action is indispensable. (Code, § 122.)

The trial which has been had must be treated as a nullity. The defendant, who has not been, must be served with process. When the action is in a condition, as against all the defendants, to be tried, it must be regularly noticed for trial, and be tried, as if no attempt to try it had been made.