Joy v. White
New York Supreme Court
Motion to set aside order. James F. Joy and others sued A. M. White and Henry M. Warden, and F. G. and Gf. G. Griswold, as executors, etc., of George Griswold.
Read the full summary
Motion to set aside order. James F. Joy and others sued A. M. White and Henry M. Warden, and F. G. and Gf. G. Griswold, as executors, etc., of George Griswold. By consent of all the parties except Warden, who had not been served, defendant White obtained leave to serve a copy of his answer on the defendant Warden, under Code Civil Proc. § 521, providing that, where the judgment may determine the ultimate rights of defendants, a defendant who requires such determination must serve a cony of his answer on the attorney of each defendant to be affected thereby. Warden moved to set aside the order.
1Opinion of the CourtAndrews, J.
The defendant Warden has not been personally served, and
no attachment has been or can be issued against his property. The plaintiffs, 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, 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…
2Cases cited1 opinion
- Kay v. . WhittakerNew York Court of Appeals · 1871
3Cited by2 opinions
- Bennett v. BirdAppellate Division of the Supreme Court of the State of New York · 1933
- Bennett v. BirdAppellate Division of the Supreme Court of the State of New York · 1933