#### Henry J. Yates *et al.*plaintiffs and appellants, *vs.*Joseph E. Horanson and, Morris Jacobson, defendants and respondents.

- 1. Where a judgment against two defendants was entered, upon an appearance . and offer to allow judgment, signed by an attorney as “ defendants’ attorney,” the summons, complaint, appearance, offer, its acceptance, proof of service and judgment were all of the same date, and the attorneys for the plaintiffs occupied the same office with the attorney appearing for the defendants, upon an affidavit of one of the defendants, denying that he was ever indebted to the plaintiffs, or a partner of the other defendant; that he was ever served with process in the action; or ever authorized the attorney who appeared, or any one else, to appear for him; ever saw such attorney or heard of Mm; or ever knew of the existence of the judgment, until the sheriff levied on his goods, two years after the judgment was entered; the plaintiffs having made no attempt previously to collect it, although the defendant making such affidavit, did business in the same city with them, all the time, and was fully responsible; *Seld*that these facts, uncontradicted and unexplained, warranted the setting aside and vacating . of the judgment and execution, as to such defendant.

2. *Seld, also,*that if there was *eolhtsion*in the entry of the judgment, any question as to the authority or responsibility of the person who appeared for the defendants was wholly immaterial.

(Before Robertson, Ch. J. and Garvin, J.)

Heard November 12, 1866 ;

decided May —, 1867.

Appeal from an order made at a special term, vacating and setting aside a judgment as to the defendant Jacob*13son, and the execution issued thereon and the levy upon his property.

The plaintiffs recovered a judgment against the defendant Jacobson and one David E. Horanson, for $973.08, on the 6th of December, 1864. The judgment was entered upon an appearance and offer to allow judgment, made by one Alfred Vanderwerker, who signed himself “defendants’ attorney.” The summons and complaint, appearance, offer, its acceptance, proof of service, and the judgment, were all of the same date. The attorneys for the plaintiffs and Vanderwerker occupied the same offices. The defendant J acobson moved to set aside the judgment, so far as it affected him, stating, in an affidavit, that he never purchased any goods from the plaintiffs, nor owed them any money; that he never was a partner with the defendant Horanson ; was never served with process in said action; never authorized Vanderwerker, or any other person to appear for him in said action; never saw or heard of Vanderwerker; and never knew of the existence of a judgment against him until the sheriff levied on his goods, in May, 1866. The plaintiffs took no action upon such judgments for over two years, although all the time the defendant lived and did business in the city of Hew York, where the plaintiffs resided, and was abundantly able to pay the judgment. •

Ho affidavit was produced by the plaintiffs from Vanderwerker, or any attempt made to prove his authority to appear for the defendant Jacobson.

*Geo. B. Thompson,*for the appellants, plaintiffs.

I. The authority of the attorney to appear is to be presumed, (6 *How. U. S. Rep.*163;) and it is not shown that he had not authorty so to do. In order to avoid the effect of his appearance, it would have been necessary to show *14that it was collusive. His appearance on the record renders the judgment regular. *(Bridenbecker*v. *Mason,*16 *How. Pr.*203. *Binney*v. *Le Gal,*19 *Barb.*592.)

1. In a suit, even on a domestic judgment, a defendant, it has been held, cannot plead his ignorance of the original action, nor the attorney’s want of authority to appear for him. *(St. Albans*v. *Bush,*4 *Verm. Rep.*58.)

2. It is *never*done unless it is shown that the attorney is insolvent. *(Meacham*v. *Dudley,*6 *Wend.*514. *Campbell*v. *Bristol,*19 *id.*101. *See Denton*v. *Noyes,*6 *John.*296.)

H. There is a very great preponderance of proof showing the defendants to have been partners, and it is established by the undenied *acts*of Jacobson himself. Jacobson, it is true, swears he was not a partner with Horanson, but he does not attempt to explain the relations existing between them, and swears merely to a conclusion of his own.

IH. At any rate, the order is certainly erroneous, in that it entirely vacates the levy made by the plaintiffs, thus depriving them of the power to collect the judgment should it be sustained *on the merits.*

*John E. Burrill,*for the respondents.

I. Vanderwerker, who confessed the judgment on behalf of the defendants, was not the attorney of Jacobson, and had no right to appear for him. This is positively sworn to by Jacobson, and no affidavit has been introduced, from Vanderwerker or any one else, to disprove his statements, or to show any appointment of Vanderwerker as attorney.

H. It is not proven or alleged that Vanderwerker had any authority from Horanson to appear for him; much less that he was authorized by Horanson to appear for Jacobson.

I. It is not pretended that Horanson had any express authority.

*152. Even had they been partners, Horanson had no power to confess a judgment against his copartner, and especially after the dissolution of the alleged partnership. *(Crane*v. *French,*1 *Wend.*311, *and cases cited. Sterne*v. *Bentley,*3 *How. Pr.*331. *Blodget*v. *Conklin,*9 *How.*444.)

3. Jacobson denies that he and Horanson were ever in partnership, and this fact, if disputed, he is entitled to have tried as one of the issues in this action.

HI. The facts of the case warrant the conclusion that the judgment was obtained by fraud and collusion.

1. There was no affidavit from Vanderwerker or Horanson.

2. Vanderwerker occupied the same office with the plaintiffs’ attorneys.

3. Jacobson was at the time and ever since has been able to pay, and openly residing and doing business in this city.

4. Ho effort was made to serve him with process, and he had no notice of the suit.

5. The mode of obtaining judgment by a confession was unusual.

6. The summons, complaint, appearance, offer and acceptance, all bear the same date.

7. Ho effort was made to collect the judgment for more than two years.

IV. The opposing affidavits did not touch the point in issue on the motion, but sought to establish a partnership between Jacbbson and Horanson. This question of partnership will be litigated in the action, and if the plaintiffs desire to have it tested, they can obtain their object by serving the summons and having the action tried in the usual way.

V. On the affidavits the judge at special term found, as matter of fact, that the attorney who appeared for Jacobson had no authority to act for him, and his finding should be *16conclusive, on this appeal. The appearance being unauthorized, and the defendant not having in fact been served with process, the court had no jurisdiction over Jacobson, and the judgment is invalid. *(Porter*v. *Bronson,*19 *Abb.*237, *and cases cited. Bean*v. Mather, 1 *Daly C. P.*441, *and cases cited. Crane*v. French, 1 *Wend.*311, *and cases cited.)*

*By the Court,*Robertson, Ch. J.

If there was *.collusion*in entering up the judgment in question against the defendants, the question of the authority or responsibility of the person who appeared for them is wholly immaterial. In the absence of any explanation of the circumstances in the case tending to establish such collusion, there is no reason for interfering with the finding of the judge at special term in regard to it. Those circumstances were the joint occupation of the same office with the plaintiffs’ attorneys by such person; the cotemporaneousness of the summons, complaint, appearance, offer and acceptance; the want of any acquaintance with such person, by the defendant Jacobson; and the absence of any attempt to collect such judgment for two years, although such defendant did business in this city all the time and was fully responsible. They are neither contradicted nor explained. The court at special term was therefore warranted in making the order in question. *(See Denton*v. *Noyes,*6 *John.*296; *Blodget*v. *Conklin,*9 *How. Pr.*442.)

The order appealed from must be affirmed; with costs.