AMERICAN AQUOL & PYRODENE PAINT CO. v. SMITH et al.
(Supreme Court, General Term, First Department.
November 15, 1895.)
Judgment—Vacating—Unauthorized Appearance by Attorney.
Where no rights of third persons have intervened, a judgment against one not served with summons will be vacated, notwithstanding an unauthorized appearance by attorney.
Appeal from special term, New York county.
Action by the American Aquol & Pyrodene Paint Company against James B. Smith and John W. Smith, impleaded as “Smith & Bro.,” partners. Judgment was rendered against defendants after personal service of summons and complaint on James B. Smith, and after service of a general notice of appearance for both defendants by an attorney. Defendant John W. Smith never authorized any attorney to appear for him, was not a member of the firm of “Smith & Bro.,” and moved to set aside the judgment as soon as the facts came to his knowledge, in 1895. From an order denying a motion to set aside and vacate a judgment against him, defendant John W. Smith appeals. Reversed.
Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.
J. B. Hands, for appellant.
A. C. Smith, for respondent.
PER CURIAM.
No rights of third parties having intervened, we think that the rule that the appearance of an attorney must be held binding does not necessarily apply to this casé. Upon the facts, then, it appearing that the defendant never was served with the summons, and that he states that he was not a partner, and therefore not liable to the plaintiff, a judgment against him would be mani*724festly unjust. It appeared, moreover, that the motion was made as soon as the knowledge of the existence of the judgment came to the defendant, and we do not see how, under these circumstances, loches can be imputed to him.
The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, to abide the event of the action.