#### Nathan Manufacturing Company, Respondent, *v.*Edna Smelting and Refining Company, Appellant, Impleaded with H. A. Rogers Company, Defendant.

(No. 2.)

First Department,

February 11, 1909.

Judgment against party not served — practice — motion to strike out — defending action for codefendant not appearance.

Where a principal and’agent were joined as defendants in an action to restrain the infringement of a trade mark and'unfair competition, but the agent only was served, the judgment should not enjoin the principal also merely because the latter assumed and conducted the defense in behalf of the agent and indemnified it against the consequences of the litigation, where it expressly disclaimed an appearance for any other purpose.

As the principal not being served and not appearing except for the purpose aforesaid, cannot appeal from the judgment, it may move to strike out. the clause *519enjoining it, for the.situation is similar to-that in which a judgment isrendered upon an unauthorized appearance.

If a party is named in a summons hut not seryed, he is in the same position respecting the judgment as though not named.

Appeal by the defendant, the Edna Smelting and Refining Company from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of August, 1908, denying the said defendant’s motion to vacate part of a judgment entered in said clerk’s office on the 23d day of May, 1908.

*David Leventritt,*for the appellant.

*Samuel Untermyer [Abraham Benedict*with him on the brief], for the respondent.

Houghton, J.:

Plaintiff brought action against thé appellant Edna Smelting and Refining Company and the H. A. Rogers Company, its agent, to restrain them from infringing the plaintiff’s trade mark and from carrying on unfair competition. The Rogers Company was served with' process and answered, but the Edna Smelting and Refining Company was not served with process. The trial proceeded without such service, and during its progress the plaintiff elicited the fact that the Edna Company had indemnified the Rogers Company against the consequences of the litigation, and had employed counsel who appeared for the purpose of trying the cause in behalf of the Rogers Company. The plaintiff obtained judgment restraining the Rogers Company from continuing the acts complained of, to which was added a provision, founded upon a finding of fact, to the effect that the Edna Smelting and Refining Company, this appellant, although not served with process, openly and avowedly assumed and conducted the defense in behalf of the Rogers Company and defended the action at its own expense, by its own counsel, who, tried the cause, having indemnified the Rogers Company against the consequence of the litigation, and hence was bound by the judgment to the same extent as if it were a party upon the record. Thereupon the Edna Smelting and Refining Company made a motion to strike from the judgment this clause affecting itself, which motion was denied, and from the order entered thereon this appeal is taken.

*520The appellant, not having been served with process and expressly disclaiming that it appeared in the action otherwise than was disclosed, could not appeal from the judgment, and it was proper practice for it to make a motion to strike out the clause affecting it. The situation is similar to that in which a judgment is rendered upon an unauthorized appearance for a party by an attorney. Relief from a judgment rendered against a party upon the unauthorized appearance of an attorney in his name, may be sought by motion in' the action in .which the unauthorized appearance was entered. ( *Vilas*v. *P. & M. R. R.*Co., 123 N. Y. 440.)

We are of opinion the motion should have been granted. The question is not whether as between -the Rogers Company and the Edna Company the Edna Company would be bound by the judgment. Nor is it a question as to whether or not in some future litigation the Edna Company may be bound as to the plaintiff. The only question is whether the Edna Company so submitted itself to the jurisdiction of the court as to be bound to the plaintiff by the present judgment in the present action.

Process had not been served upon the Edna Company and it expressly disavowed a voluntary appearance, but admitted that it was aiding the Rogers Company, its nominal codefendant. Of course, a party may so voluntarily submit himself to the jurisdiction of the court as to be bound by a judgment, but in order to do so there must be an actual submission, and it is not sufficient that he manages or controls the case or advises or aids his codefendant in the trial or on appeal, or employs counsel or otherwise contributes to the expense. (23 Cyc. 1250.) These things he has a right to do to save himself from the penalty of his indemnity. In such effort to escape liability to the defendant actually served, if he does nothing more, he does not submit himself to the jurisdiction of the court to such an extent that the-court may give judgment against him.

Nor does it change the situation that he is named in the summons and not served. Under such circumstances he stands in the same position as though he had not been named.

What effect ■ the acts of the Edna Company done by it in the present action may have upon any future litigation between the plaintiff and it is not before us and we do not determine. . Nor is it any answer to the appellant’s position to say that the provision in *521the judgment complained of has no binding effect upon the Edna Company. Whether it would be binding or not the Edna Company has the right to have it eliminated because it was unauthorized.

The order must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Patterson, P. J., McLaughlin, Laughlin and Scott, JJ., concurred..

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.