The defendant Warden has not been personally served, and
no attachment has been or can be issued against his property. The plaintiffs, therefore, cannot obtain a judgment which will bind him or his property. Even if Warden had been personally served, I should have some doubt whether, if.the plaintiffs succeeded, the rights and liabilities of the defendants,.as between themselves, could be litigated in this action. The decision of the court of appeals in Kay v. Whittaker, 44 N. Y. 565, seems to indicate that they could’ not. In such case, however, the determination of that question could be left to tile trial court. But, as the plaintiffs cannot obtain a judgment which will bind him, or his property, I do not think he can be compelled to litigate questions which may arise between himself and White, if plaintiffs get a judgment against the latter, by service of White’s answer, pursuant, to the order which was made under section 521 of the Code. Warden has a right to have this question determined now, for he should not be put to the expense and trouble of litigation when be has not been properly brought in. The motion to vacate the order of October 22, 1888, is granted, with $10 costs. Ordered accordingly.