
    David Lackomowitz, Appellant, v. Jerome E. Bates and Leonard W. Bates, Copartners, etc., and Another, Respondents.
   The parties hereto having stipulated in open court that this ease may be disposed of by a court of four, the decision is as follows: Judgment and .order, in so far as they affect defendant McGonigle, affirmed, without costs; in so far as they affect the defendants Bates, reversed and new trial granted, with costs against appellants Bates to abide the event. (See Code Civ. Proc. § 507; Ferguson v. Crawford, 70 N. Y. 253; Sinnott v. Sanan, 156 App. Div. 323.) There is no pleading nor proof which makes it proper for us to pass upon the effect of a motion asserted to have been made in the Municipal Court to set aside the judgment on the ground that the defendant in that action was not served with summons; therefore, that question is left undetermined by this appeal. Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred.  