Siskind v. Levy
| Decision Date | 20 March 1961 |
| Citation | 13 A.D.2d 538,213 N.Y.S.2d 379 |
| Parties | Eve SISKIND and Joseph Siskind, Appellants, v. Ray C. LEVY, Herbert H. Lang d/b/a Swezey Flour Company, and Silver Flour Warehouse Trucking Corp., Defendants, and Philip Jacobs, d/b/a Shelley Bakery, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Harry H. Lipsig, New York City, for appellant; Bernard Sack, New York City, of counsel.
Ronald Eisenman, Theodore T. Weiser, New York City, for respondent.
Before BELDOCK, Acting P. J., KLEINFELD, CHRIST, PETTE and BRENNAN, JJ.
MEMORANDUM BY THE COURT.
In an action by the plaintiff wife to recover damages for personal injuries and by her husband to recover damages for expenses incurred and for loss of his wife's services, plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County, dated March 21, 1960: (1) as imposed a condition to the denial of the defendant Jacobs' motion, made under section 180 of the Civil Practice Act, to dismiss plaintiffs' amended complaint with respect to him on the ground of plaintiffs' unreasonable neglect to serve the summons on one of the named defendants, Levy, an Ohio resident; and (2) as granted said defendant's motion to the extent of severing the action and dismissing the complaint against him without prejudice in the event plaintiffs shall fail to comply with the condition.
The condition imposed was that plaintiffs shall serve the summons on Levy by publication, to be commenced within a specified time.
Order modified: (1) by striking out the first decretal paragraphs denying the motion conditionally; (2) by striking out the second decretal paragraph granting the motion if the condition be not fulfilled by plaintiffs; and (3) by substituting therefor a paragraph denying the motion unconditionally. As so modified the order, insofar as appealed from, is affirmed, with $10 costs and disbursements to plaintiffs.
The mere naming or designation in a summons and complaint of any person as a defendant does not make him a party to the action. He does not become a party to the action until he has been served with the summons or until he has voluntarily appeared in the action (Bennett v. Bird, 237 App.Div. 542, 261 N.Y.S. 540; Emmons v. Hirschberger, 270 App.Div. 1025, 63 N.Y.S.2d 48). A joint tort-feasor is neither an indispensable nor a conditionally necessary party under sections 180 and 193 of the Civil Practice Act. Therefore, defendant...
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...432--33, 328 N.Y.S.2d 653, 656--658, 278 N.E.2d 895, 897, 898).8 Of course, joint tortfeasors are not necessary parties (Siskind v. Levy, 13 A.D.2d 538, 213 N.Y.S.2d 379; Weidman v. Sibley, 16 App.Div. 616, 44 N.Y.S. 1057) despite Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 ......
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