Testing Laboratories of New York, Inc., v. Krainin

Full title: TESTING LABORATORIES OF NEW YORK, INC., Respondent, v . THEODORE KRAININ…

Court: Supreme Court, Appellate Term, First Department

Date published: Mar 31, 1925

124 Misc. 667 (N.Y. App. Term 1925)

208 N.Y.S. 801

Opinion

March 31, 1925.

Joseph David Shifrin, for the appellants.

Donal McLean Somers, for the respondent.

PER CURIAM:

Whether or not the situation warranted the application of the provisions of section 193 of the Civil Practice Act, we are not called upon to say. The practice here has been highly irregular in many respects. To bring in a party under section 193 the order must be on notice^_ and it must direct that a supplemental summons be served upon the new party. That was not done and no such summons was served. Furthermore, section 193 does not contemplate or authorize the dropping out of the original defendant. The appellants never became parties, and the judgment is a nullity. The order is appealable ( Mitchell v. Schroeder, 94 Misc. 270; Milton Holding Corp. v. Gross, 193 N.Y.S. 75) and the order appealed from is reversed, with ten dollars costs. Motion granted, with ten dollars costs, and judgment vacated.

_ See Rules of Civil Practice, rules 102, 105.

All concur; present, BIJUR, MULLAN and COTILLO, JJ.