
    Kaliske, Pl’ff, v. Weil et al., Def’ts.
    
      (New York Common Pleas, Special Term,
    
    
      Filed February, 1895.)
    
    Trial — Dismissal.
    The complaint will not be dismissed for nonservice of the summons upon one of the defendants, where a complete determination of the controversy can be had without the presence of such defendant.
    Motion to dismiss the complaint for non-service of the summons on one of the defendants.
    
      Edwin T. Taliaferro, for pl’ff; Holcomb & Martin, for def’ts.
   Pryor, J.

Action against partners for specific performance of an agreement for a release, and motion to dismiss the complaint for nonservice of summons on a defendant. The order solicited is not authorized by section 821, Code Civ. Proc. Dismissal of the complaint for nonservice of summons on a defendant is warranted only “ when a complete determination of the controversy cannot be had ” without the presence of such defendant. But counsel for the motion concedes that a release by the defendants served will bind the other. What, then, is wanting to a complete determination of the controversy? Manifestly nothing. Counsel objects against the injustice of binding a party in his absence, to .which the twofold answer is : First, that the defendant not served might, nevertheless, have voluntarily appeared in protection of his rights, Waffle v. Vanderheyden, 8 Paige 45; Lumber Co. v. Bissell, 9 id. 225; Skinner v. Noyes, 7 Rob. (N. Y.) 228 ; and secondly, that the court on the trial will, if necessary, direct the absent defendant to be brought in. Code Civ. Proc. § 452; Powell v. Finch, 5 Duer, 666.

Motion denied, with costs.  