
    (119 App. Div. 889)
    SWARTZ v. NEW YORK CITY RY. CO.
    (Supreme Court, Appellate Division, First Department.
    May 31, 1907.)
    •Costs—Defendant Personally -Served—General Appearance.
    Code Civ. Proc. § 3228, subsec. 5, provides that in actions brought in the Supreme Court in the county of New York, which should have been-brought, except for the amount claimed therein, in the City Court of the city of New York, and in which defendant shall have been “personally _served” with process within the county, the plaintiff shall recover no costs, unless he shall recover $500 or more. Held, that a voluntary general appearance of the defendant is- equivalent to personal service.
    [Ed. Note.—For eases in point, see Cent. Dig. vol. 13, Costs, §§ 09, 70-1
    Appeal from Special Term.
    Action by Maud Swartz against the New York City Railway Company. From an order denying plaintiff’s motion for a review of the taxation of costs plaintiff appeals. Affirmed. Service of summon-; and complaint was made by leaving the same with the attorney of the defendant, who served a general notice, of appearance and answer, and defended the action on behalf of defendant. The offices of defendant and the office of its attorney are in the borough of Manhattan.
    The following is the opinion of the court below:
    The application of the words “personally served with process" in subdivision 5 of section 3228 of the Code is rendered clear by section 424, which provides that a voluntary general appearance is equivalent to personal service of the summons upon the defendant.
    Argued before INGRAHAM, LAUGHLIN, CLARICE, SCOTT, and LAMBERT, JJ.
    Peck & McCann, for appellant. ¡
    
    James L. Quackenbush and B. H. Ames, for respondent.
   PER CURIAM.

Order affirmed, with $10 costs and disbursements. Order filed.'  