Bennett v. Bird

Carswell, J. Plaintiff began an action entitled against the six partners of Amory Browne & Company, 1928 Firm of Boston, Massachusetts. Two thus named as defendants are Amory and [543] Meffert. Amory was not served with the summons and complaint. Meffert was so served and he served an amended answer. This amended answer Meffert also served upon Amory. It seeks a dismissal of the complaint, sets up two counterclaims, and in the event plaintiff recovers against him, Meffert seeks judgment against Amory. Amory, appearing specially, moved to vacate Meffert’s service upon him and have it declared a nullity. From the order denying his motion Amory appeals. The question is whether or not Meffert may serve his answer on a codefendant, Amory, and thus bring Amory into the action although Amory has never been served with the summons and complaint and has never voluntarily appeared as a defendant. The Special Term has held and the respondent contends that section 264 of the Civil Practice Act authorizes this practice. A defendant is an adverse party. (Civ. Prac. Act, § 191.) As such a party he may only be subjected to jurisdiction of a court by the service of process upon him. The usual means is by the service of a summons. In particular instances a court may get conditional jurisdiction in advance of the service of a summons pursuant to precise statutory provisions authorized in connection with the provisional remedies of arrest, injunction, atttachment and receivers. Such jurisdiction, being conditional, may be divested if the statutory provisions relating to the particular provisional remedy invoked are not carried out. A party may be subjected to jurisdiction in exceptional instances, by order or otherwise, where such practice is specifically authorized; but in such instances the particular provision in precise terms requires the service of a supplemental summons (Civ. Prac. Act, § 193) or there is a specific declaration (where one is required to appear by means other than the service of a summons) that such substituted method is to be deemed the equivalent of the service of a summons. (Civ. Prac. Act, § 271.) In section 271 it is provided: “ A person not a party to the action who is so served with an answer becomes a defendant in the action as if he had been served with the summonsSection 264 of the Civil Practice Act, relied upon herein, contains no language paralleling the foregoing. A person does not become a party to an action by the mere naming of him in the title of the action. Voluntary appearance aside, a person becomes a party to an action only by the service of process upon him. (Norton v. Hayes, 4 Den. 245.) Section 264 of the Civil Practice Act reads: “ § 264. Controversy between defendants. Where the judgment may determine the ultimate rights of two or more defendants [544] as between themselves, a defendant who requires such a determination must demand it in his answer, and at least twenty days before the trial must serve a copy of his answer upon the attorney for each of the defendants to be affected by the determination, and personally, or as the court or judge may direct, upon defendants so to be affected who have not duly appeared therein by attorney. The controversy between the defendants shall not delay a judgment to which the plaintiff is entitled, unless the court otherwise directs.” This section is contained in article 27, entitled “ Pleadings.” It is a re-enactment of section 521 of the Code of Civil Procedure. It authorizes the serving by a defendant of bis answer on a codefendant. The language, however, implies and assumes that such a codefendant has been subjected to the jurisdiction of the court by the service of process by the plaintiff. It prescribes that such an answer may be served upon a codefendant by means of a service thereof “ upon the attorney for each of the defendants to be affected by the determination.” This language implies that such a defendant has voluntarily appeared in the action or has been served with a summons and then appeared in the action, otherwise there would be no attorney upon whom to make service. This section further provides that the service of such an answer may be made “ personally, * * * upon defendants so to be affected who have not duly appeared therein by attorney.” This implies that the opportunity had been afforded to such a defendant to appear through the service of a summons; else why the phrase “ who have not duly appeared? ” In connection with the latter provision, where a defendant has been served with process by the plaintiff (as we construe the section), but has not appeared, the section permits personal service of an answer “or as the court or judge may direct.” Throughout' the section, therefore, the language used implies or assumes that a person has in fact been made a party defendant by the service of process and that something more has been done by the plaintiff than the mere naming of the individual as a party defendant in the title of the action. If section 264 of the Civil Practice Act were intended to authorize the service of an answer by one defendant upon a party named in the title of the action as a codefendant but who has not been served with process, apt language manifesting this purpose would appear in the section as in a kindred situation in section 271. There the authorization of the service of such an answer upon a person not a party to the action was declared to be equivalent in effect to the service of a summons. If similar practice were thus specifically authorized in section 264, needful supplemneting regulations would be provided, so as to avoid complication which would [545] ensue from construing this section to authorize such a practice, without such supplementary regulatory provisions. To declare that section 264 authorizes such practice despite the absence of apt language and supplementary regulations would be legislation, by the court, under the guise of interpretation. The counterclaims of Meffert do not raise questions between Meffert and the plaintiff, Bennett, nor do they raise questions between Meffert and Bennett “ along with any other persons.” Hence section 271 of the Civil Practice Act may not be invoked to sustain the practice herein.' Proper practice seems to require that Meffert resort to section 193 of the Civil Practice Act on the theory that Amory is not a party to the action and, therefore, should be brought in by a supplemental summons in accordance with that section. The foregoing is in accord with Joy v. White (22 Abb. N. C. 304; 6 N. Y. Supp. 571). There a situation in part akin to that involved herein arose under section 521 of the Code of Civil Procedure, the counterpart of section 264 of the Civil Practice Act. It likewise is in accord with Kay v. Whittaker (44 N. Y. 565, 576). There the court (per Earl, C.) was considering section 274 of the Code of Procedure, predecessor of section 1204 of the Code of Civil Procedure, which is the counterpart of section 474 of the Civil Practice Act, in reference to a court determining ultimate rights between defendants and giving affirmative relief in a proper case. After referring to the section mentioned and holding it was not available to sustain the practice therein pursued, the court said: “ * * * and it seems to me that defendants can have relief against each other only in a case in which they have appeared and answered, in reference to the claim made against them by the plaintiff, and as a part of the adjustment of that claim, and that it must be based upon the facts involved in, and brought out by the litigation * * * of that claim. In such a case, all the parties being before the court, and all having been heard, * * * the rights as between plaintiffs and defendants not only, but as between the parties on either side, can be adjusted.” (Cases cited.) The order should be reversed on the law and the facts, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Lazansky, P. J., Young and Tompkins, JJ., concur; Scudder, J., dissents, with separate opinion.