Opinion
May, 1915.
The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Judgment and order, in so far as they affect defendant McGonigle, affirmed, without costs; in so far as they affect the defendants Bates, reversed and new trial granted, with costs against appellants Bates to abide the event. (See Code Civ. Proc. § 507; Ferguson v. Crawford, 70 N.Y. 253; Sinnott v. Hanan, 156 App. Div. 323.) There is no pleading nor proof which makes it proper for us to pass upon the effect of a motion asserted to have been made in the Municipal Court to set aside the judgment on the ground that the defendant in that action was not served with summons; therefore, that question is left undetermined by this appeal. Jenks, P.J., Thomas, Stapleton and Rich, JJ., concurred.