Brower v. Kahn — 27 N.Y.S. 592

Majority

p. 592

BROWER v. KAHN.

(Supreme Court, General Term, Second Department.

February 12, 1894.)

Headnote

Appearance—Motion to Set Aside—Authority op Attorneys.

Where a defendant Is joined in an action to foreclose a mortgage as a party in interest because he is the record holder of the second mortgage on the premises, but it appears that he has no interest therein, an appearance for him in the action will not be vacated, as he is not prejudiced by it.

Appeal from special term, Kings county.

Action by James 0. Brower against Leopold Kahn, impleaded with others, to foreclose a mortgage made by defendants Knight and others to the Title Guaranty & Trust Company as collateral security for the payment of $3,500. Defendant Kahn was joined as defendant as a party in interest, being the record holder of a second mortgage on the premises. From an order denying a motion to vacate the notice of appearance interposed in behalf of said Kahn, and to vacate the judgment thereon entered, said Kahn appeals. Affirmed.

Argued before DYKMAN and PRATT, JJ.

p. 593

Hahn & Myers, (Emanuel J. Myers and Arthur A. Alexander, of counsel,) for appellant.

William T. Gilbert, (William H. Ford, of counsel,) for respondent.

The appearance of a duly-admitted attorney of the court is prima facie good. Where it is shown that he was not authorized' to appear, and it is shown that injustice will be done by allowing the appearance to stand, the court, upon the application of a party whose rights are imperiled, will take adequate measures for their protection. That is not this case. Kahn has no rights in the premises, and no interest in the litigation. If the facts which are shown in this application appeared upon the real property records, he would not have been made a party to the litigation. The appearance for him of the attorney does him no injury, and the motion to strike it from the record was properly denied. Order affirmed, with $10 costs and disbursements.