
    Michael Feinberg, Appellant, v. The American Surety Company, Respondent.
    Appeal from order of Special Term letting in one Hawkins as party defendant.
    M. D. Steuer, for appellant.
    Powell & Cady, for respondent.
   Hascall, J.

The presence of Hawkins is not necessary to a complete determination of the rights of the parties plaintiff and defendant. Whatever interest Hawkins may eventually have, as between himself and the surety company, is quite immaterial to the issue as made by the pleadings already of record.

This is an action at law, upon an instrument under seal; Mr. Hawkins is not a party to such instrument, is not primarily liable; section 452 of the Code is not applicable to the status of the parties shown by the papers (9 Hun, 439; 123 N. Y. 532), and the order below ought not to stand.

Order appealed from reversed, with costs to appellant.

Conlan and Schuchman, JJ., concur.

Order reversed, with costs to appellant.  