Majority
p. 503American Aquol and Pyrodene Paint Company, Resp’t, v. John W. Smith, Impleaded, etc., App’lt. (Supreme Court, General Term, First Department, Filed November 15, 1895.)
Headnote
1. Judgment—Vacation.Where the rights of third parties have not intervened, a judgment against a person not summoned will be vacated, notwithstanding an unauthorized appearance by an attorney.^
% Same—Laches.
Where a motion to vacate such judgment is made as soon as the knowledge of its existence came to the defendant, loches cannot be imputed to him.
Appeal from an order, denying a motion to set aside and vacate a judgment.
J. B. Hands, for app’lt; A. G. Smith, for resp’t.
— Uo 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 case. , 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 manifestly 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.
p. 504
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.
All concur.