
    The United States Life Insurance Company in the City of New York, Respondent, v. Leopold Hellinger and Others, Respondents, Impleaded with Sophie Marchais La Grave, Appellant, and Others.
    First Department,
    February 5, 1909.
    Practice — unauthorized appearance in action of foreclosure — when defendant seeking to set aside appearance after judicial sale should sue in equity.
    ■ Although it is ordinarily the proper practice to move to set aside an unauthorized notice of appearance when judgment has been taken through such appear- • anee, yet where a non-resident having a subsequent lien on lands under foreclosure, and who was "not served With process, though her interest was alleged, seeks two years after the judicial sale to set aside a notice of appearance served on her behalf, and authorized by her son who negotiated the loan, upon the ground that the- appearance was unauthorized, the issue should not be determined upon affidavits, but, under the peculiar circumstances disclosed, the party ■ should be left to seek redress by a suit-in equity.
    „ Appeal by the defendant, Sophie Marcháis La Gfavej from an order of the Supreme Court, made at the Hew York Special Term and- entered in the office of the clerk of the county of Hew York on the 6th day of July, 1908, denying the said defendant’s motion to set aside a notice of appearance by attorneys.
    
      Archibald R. Watson, for the appellant.
    
      David B. Ogden, for the respondents Hellinger and Rosenstock.
   Houghton, J.:

The appellant La Grave was the owner of a fractional part of a mortgage given to plaintiff, which fractional part was agreed should. be deemed a subsequent lien to that portion retained by plaintiff. Plaintiff began foreclosure proceedings of that part of the mortgage held by it and appellant was made a party defendant, the complaint setting forth her interest in the mortgage. Ho service of process was made on her, but attorneys assuming to represent her served a notice of appearance in her behalf, and On such appearance judgment was taken and a sale had, the property bringing only án amount sufficient to substantially satisfy the plaintiff’s claim and. costs of foreclosure. Upwards of two years after the sale was had appellant moved to set aside the notice of appearance by attorneys served in her behalf, on the ground that such appearance by the attorneys was unauthorized. The relief which she asked was that she be restored to the status she occupied before the judgment of foreclosure was granted. This motion was denied and she appeals.

At all the times in question appellant was a resident of the Eepublic of France and had never been a resident of the State of New York. The money with which an interest in plaintiff’s mortgage was purchased was sent by her to her son in this State, who made the purchase for her and authorized the appearance of attorneys in the foreclosure action in her behalf, which appearance she now repudiates.

■ While it is ordinarily proper practice to move to set aside an unauthorized notice of appearance by attorneys when judgment has been taken through such appearance (Vilas v. P. & M. R. R. Co., 123 N. Y. 440) we think the situation presented in the present case is such that the question of whether the appearance was authorized or unauthorized should not be passed upon by affidavits but should be determined upon common-law proof. The property involved has been sold at foreclosure sale. There was delay, in moving even after appellant learned of such sale, and there is doubt whether the son did not have implied authority to employ attorneys under the particular circumstances surrounding the transaction. The appellant being a non-resident the judgment of foreclosure which plaintiff obtained as to her is a foreign judgment and she is entitled to treat it as a judgment of a foreign jurisdiction. She is a subsequent incumbrancer and if she has not been cut off by the foreclosure brought by plaintiff she herself can bring an action to foreclose and her rights can be thus preserved. If appellant had been a resident of' the State and judgment had been taken against her on an unauthorized appearance by the attorneys there would have been no possibility of her setting up collaterally the lack of authority of the attorney to appear in her behalf. (Brown v. Nichols, 42 N. Y. 26; Denton v. Noyes, 6 Johns. 296.) She being a non-resident and the judgment of foreclosure being a foreign one as to her it is possible that she might litigate Collaterally and défensively, the unauthorized appearance by attorneys in her behalf and the consequent lack of jurisdiction of the court to render judgment against her. (See 3 Cyc. 534.) But it is unnecessary to decide this latter question because we are persuaded under the peculiar facts existing, that the appellant should be compelled to resort to an action in equity to obtain relief. While the practice of obtaining relief from an unauthorized appearance by attorneys is commended and asserted to be proper practice in Vilas v. P. & M. R. R. Co. (supra) it is conceded that special circumstances may exist which may render remedy by motion inadequate and relegation of the-alleged injured party to an action in equity proper. In our opinion such special circumstances exist in the present case.

Without expressing any opinion as to the merits of appellant’s position our conclusion is that the order should be affirmed, with ten dollars costs and disbursements.

Ingraham, Laughlin, Clarke and Scott, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  