
    Byron D. Allerton, Respondent, v. Major R. Poole, Appellant.
    (Supreme Court, Appellate Term,
    July, 1910.)
    Municipal Courts — Review — Decision — Reversal.
    Upon appeal by the defendant from a judgment of the Municipal Court of the city of New York in an action in which he did not appear and was not served with process, he is entitled to a reversal ofothe judgment; and the appeal will not bo dismissed on account o£ an offer of the plaintiff to vacate the judgment without costs to either party.
    Appeal by the defendant from a judgment rendered by default in favor of the plaintiff in the Municipal Court of the city of Rew York, third district, borough of Manhattan.
    Benjamin Bulmer, for appellant.
    S. A. Singerman, for respondent.
   Per Curiam.

The defendant appeals from a judgment taken against him in favor- of the plaintiff and hands up affidavits, copies of which have been served, showing that no service of the summons was ever made upon him and that he has never appeared in the action. The process server practically admits that he served the wrong person, and plaintiff asks that the appeal be dismissed upon the ground that his attorney has offered to vacate the judgment without costs to either party. Such an offer is not a ground for dismissal. If no summons was ever served and the defendant did nothing to confer jurisdiction upon the court below, the judgment was wholly unauthorized and must he reversed. By recourse to the provisions of section 325 of the Municipal Court Act, the respondent could have reduced the costs upon reversal to the sum of five dollars.

Present: Seabury, Guy and Bijur, JJ.

Judgment reversed, with costs, and complaint dismissed, with costs.  