Plaintiff sued to recover upon a promissory note made by Amory Browne & Company, 1928 Firm *546of Boston, Massachusetts, of which firm defendants had been partners. The firm has been dissolved. Defendant, respondent, Meffert resides in this State and has been duly served with the summons and complaint. Defendant, appellant, Amory resides in Massachusetts and was not served with the summons and complaint, and did not appear in the action by attorney or otherwise.
The pleadings indicate that Meffert’s defense relates not only to plaintiff’s alleged claim, but also constitutes a counterclaim as against Amory, and that the entire transaction, as alleged in the complaint and Meffert’s answer, constitutes one interrelated business transaction. In this respect the case differs from Kay v. Whittaker (44 N. Y. 565), where the matters set up by one defendant against his codefendant “ have nothing whatever to do with the plaintiff or his claim. They are the facts for an independent litigation * * * and should not be permitted to embarrass this action.” That case, in my opinion, is not an authority for appellant’s contention here.
Meffert has personally served his answer upon Amory in this State. The latter contends there is no authority for such practice. It seems to be generally conceded that if there is any authority for the practice adopted, it is found in section 264 of the Civil Practice Act.
With the object of avoiding a multiplicity of suits, the framers of the Civil Practice Act provided for bringing third persons into an action as parties by court order (Civ. Prac. Act, § 193, subd. 2), and permitted a defendant to serve his answer upon a codefendant (Civ. Prac. Act, § 264).
In the instant case we are confronted with the proposition whether or not Amory, who was not served with the summons and complaint and did not appear in the action, can be served by Meffert with the latter’s answer, and thus be brought into the action. The present facts clearly indicate that the issues may be tried in one action, and in my opinion should be so tried if violence is not done to our established practice rules.
I differ with my associates, who think Joy v. White (6 N. Y. Supp. 571; 22 Abb. N. C. 304) is an authority for Amory’s contention. In that case one defendant sought to bring in a codefendant who resided in Massachusetts and had no attachable property in this State. An order was made to serve the answer upon the Massachusetts defendant by mailing. It is apparent no jurisdiction of such defendant could be obtained by that method.
Under section 264 of the Civil Practice Act, if the ultimate rights of Meffert and Amory may be determined as between themselves by the judgment in this action, Meffert had a right to serve *547Amory if the latter had appeared herein by attorney. The section reads that in such case service of the answer must be made “ upon the attorney for each of the defendants to be affected by the determination.” It then goes on, “ and personally * * * upon defendants so to be affected who have not duly appeared therein by attorney.” As I read this phrase, it does not presuppose service of the summons and complaint on the defendant sought to be brought in. The words “ who have not duly appeared ” indicate a defendant who has not been served with the summons and complaint and, therefore, has not appeared by attorney.
To sustain appellant Amory’s contention, it must be held that a person named as defendant, but not served with the summons and complaint, is not a “ defendant.” That such contention is erroneous is indicated by section 815 of the Civil Practice Act, relating to an arrest, injunction and attachment, where the language is “ either before or after the defendant’s appearance.” In section 826, “ A defendant may be arrested ” in certain stated cases. In section 833, “ Where a specific allegation in the complaint is necessary * * * to an arrest of the defendant.” In section 877, “ Where it appears from the complaint that the plaintiff demands and is entitled to a judgment against the defendant.” Section 180 provides for the dismissal of the complaint in the court’s discretion, as against the defendant served, where the plaintiff unreasonably neglects to serve one of two or more named defendants, “ without whose presence a complete determination of the controversy cannot be had.”
In all these sections and others in the Civil Practice Act there is no distinction between a defendant named and not served and one that is served. A defendant named as such is a “ defendant,” served or not served. Any other nomenclature, in my opinion, would lead to great confusion.
If the service of the answer upon Amory was improper and he may not, therefore, be brought into this action, and if he could not be brought into the action under section 193, which only permits a party to bring in another person as a party when the latter is not named as a party defendant, what relief would Meffert have against Amory except by a separate action? If such separate action were brought, I have no doubt that under the present pleadings the actions could be consolidated and tried together. In other words, the parties by a roundabout method would arrive at the same result which Meffert seeks, and our theory of practice to avoid unnecessary litigation would be defeated.
I conclude that the Civil Practice Act does not contemplate *548such circuitous proceeding and that under section 264 of the Civil Practice Act the order should be affirmed.
For the reasons stated, I dissent from the majority decision of my associates.
Order denying motion to vacate service of answer reversed on. the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.