I concur in the affirmance of the judgment and order appealed from, for the following reasons:
First. The defendants having retained the Mississippi attorneys were bound by the action of these attorneys in the conduct of the litigation, even though they exceeded the limitation placed upon their authority. (Palen v. Starr, 7 Hun, 422; Matter of Maxwell, 66 id. 151; Butcher v. Quinn, 86 App. Div. 391; Ferguson v. Crawford, 70 N. Y. 253, 258, 261.) ' The situation in this respect is entirely different from the one which exists in cases like Famobrosis Society v. Royal Benefit Society (166 App. Div. 593) where the attorney’s appearance was wholly unauthorized or where fraud was involved.
*69Second. Where a defendant “ for the purpose of questioning or ' contesting such an attempted exercise of jurisdiction * * * appears and submits the matter for an adjudication, he is clearly bound by the result, as to that issue, at least.” (3 Freem. Judg. [5th ed.] 2835.) Here the Mississippi attorneys, after excepting to the jurisdiction, moved to open the default. The lower court held that this constituted a general appearance and authorized the entry of judgment. The Mississippi attorneys, apparently mistakenly, advised their clients that under the Mississippi law they could appeal from this determination without submission to jurisdiction. The clients authorized this specific act of appeal. They must, therefore, take the consequences of.it. When the Mississippi Supreme Court held adversely on the question of jurisdiction, it decided that in that State what the defendants thought was a special appearance constituted a general appearance. Mr. Justice Holmes has written in Chicago Life Ins. Co. v. Cherry (244 U. S. 25, 29): “ But when the power of the court in all other respects is established, what acts of the defendant shall be deemed a submission to its power is a matter upon which States may differ. If a statute should provide that filing a plea in abatement, or taking the question to a higher court should have that effect, it could not be said to deny due process of law. The defendant would be free to rely upon his defence by letting judgment go by default. * * * If without a statute a court should decide as we have supposed the statute to enact, it would infringe no rights under the Constitution of the United States. That a party that has taken the question of jurisdiction to a higher court is bound by its decision was held in Forsyth v. Hammond, 166 U. S. 506, 517.”
While the decision in that case turned primarily upon the question of due process, read in connection with the other authorities it enforces the conclusion that the Full Faith and Credit Clause of the United States Constitution (Art. 4, § 1) requires us to recognize a judgment obtained as was the one here in suit, after determination by the highest court of the State in which it was obtained, that the action of the attorneys employed subjected the defendants to the jurisdiction of the court. (Cherry v. Chicago Life Ins. Co., 190 Ill. App. 70; Western Life Indemnity Co. v. Rupp, 235 U. S. 261; Tootle v. McClellan, 7 Ind. T. 64; 103 S. W. 766; Tentative Restatement of the American Law Institute, Conflict of Laws, Restatement No. 2, § 87.)
Martin and O’Malley, JJ., concur; Dowling, P. J., dissents.
Judgment and order affirmed, with costs.