Opinion
May 24, 1943.
Action to recover damages for personal injuries suffered in an automobile accident. Order denying appellant executors' motion to vacate an order substituting them as parties defendant in place of their decedent, and to vacate the judgment entered against them, modified on the law by striking out the decretal paragraph and substituting in place thereof paragraphs providing as follows: (1) that the motion to vacate the order dated November 17, 1941, be denied; (2) that all proceedings upon the final judgment entered against appellants shall be stayed until the further order of the court and that the judgment be allowed to stand by way of security pending the determination of a trial, to which they are entitled and which is hereby granted; and (3) that in all other respects the motion to vacate the judgment is denied. As thus modified, the order is affirmed, with ten dollars costs and disbursements to appellants. The order directing the substitution of the appellants as parties was made without notice, but since such order would follow as matter of course it should not be vacated. A judgment obtained after trial at which an unauthorized attorney appeared for the named defendants is not wholly void. (See 2 Carmody's New York Practice § 755; see, also, Civ. Prac. Act, § 84; Evans v. Cleveland, 72 N.Y. 486; Holsman v. St. John, 90 N.Y. 461.) Close, P.J., Carswell, Johnston, Adel and Taylor, JJ., concur.