Powell v. Finch
The Superior Court of New York City
. 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."
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. 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 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…
1Opinion of the Court
Bosworth, J.,
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…
2Cited by6 opinions
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- Goodyear v. BrooksThe Superior Court of New York City · 1866
- Kaliske v. WeilNew York Court of Common Pleas · 1895
- Chew v. BrumagimSupreme Court of New Jersey · 1870
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