
    Joy et al. v. White et al.
    
    
      (Supreme Court, Special Term, New York County.
    
    January, 1889.)
    Practice in Civil Cases—Service op Answer on Co-Dependant.
    Where a defendant has not been personally served, and no attachment has been or can be had against his property, he cannot be compelled to litigate questions which may arise between him and a co-defendant by service of the answer of such co-defendant on him, 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 copy of his answer on the attorneys of defendants affected by it.
    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.
    
      Davies i& Rapallo, (Edward Lyman Short, of counsel,) for the motion. Robert C. Taylor, for White.
   Andrews, 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 left to tile trial court. But, as the plaintiffs 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 he should not be put to the expense and trouble of litigation when be has not been properly brought in. The motion to vacate the order of October 22, 1888, is granted, with $10 costs. Ordered accordingly.  