
    American Aquol and Pyrodene Paint Company, Respondent, v. James B. Smith and Another, Appellants.
   Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event of the action.—

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 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, laches can be imputed to him. The order appealed from should be reversed with ten dollars costs and’ •disbursements, and,the motion granted, with ten dollars costs to abide the event of the action.

Present — Yan Brunt, P. J., O’Brien and Parker j JJ.  