
    Olin J. Stephens, Appellant, v. Frank W. Molloy, Respondent.
    (Supreme Court, Appellate Term,
    May, 1906.)
    Municipal Courts—Procedure — Process — Substituted service.
    Where an order, allowing substituted service of the summons, and the papers upon which the order was granted are not filed within the time required by section 34 of the Municipal Court Act, the • order is inoperative.
    A defendant appearing specially in a Municipal Court action, whose objection to the jurisdiction of the court over his person is overruled, does not waive the question of jurisdiction by filing an answer and taking part in the trial, where the motion to dis miss the complaint is renewed before the taking of testimony and • again at the close of the plaintiff’s case and no defense is made or motion upon the merits.
    In such case, a judgment rendered in defendant’s favor, granting ■ his motion to dismiss the complaint at the close of plaintiff’s case, should be modified so as to be without prejudice to a new action (Municipal Court Act § 248) and, as so modified, affirmed with costs.
    Appeal by the plaintiff from a judgment in favor of the defendant rendered in the Municipal Court of the city of Mew York, second district, borough of the Bronx.
    W. 0. Relyea, for appellant,
    W. B. Dressier, for respondent.
   Davis, J.

The plaintiff attempted to serve his summons and verified complaint in this action December 19, 1905, by substitution under an order granted December 18, 1905. By .he terms of the summons it was made returnable December 38, 1905. Under section 4 of the Municipal Court Act (L. 1902, ch. 580) the order allowing substituted service and the papers upon which the order is granted must be filed not less than six days before the return day of the summons, otherwise the order becomes inoperative. It is admitted that the older and papers on which it was granted were not filed .vithin the required time. On the return day of the summons the defendant appeared specially, through his attorney, by filing a written notice of appearance, and moved to dismiss the complaint upon the ground that the court had no jurisdiction to try the action because of plaintiff’s failure to comply with section 34 of the Municipal Court Act so far as it required the filing of the order allowing substituted service and the papers upon which the order was granted at least six days before the return day of the summons. The motion was denied and a written order was thereupon made to that effect. The defendant then filed a verified answer. After two adjournments- the case came to a trial on February 5, 1906. Before any testimony was taken, the defendant’s attorney renewed Ms motion to dismiss the complaint upon e gr of lack of jurisdiction in the court to try the action of failure to comply with section 34 of the Municipa Act. The court reserved decision on this motion an . plaintiff’s witnesses were called and examined, t e e e At the close of plant®. cross-examining, ant’s attorney again renewed his motion to dismiss the complaint for lack of jurisdiction in the court and ííe wished would not make a motion upo.3 the merits ana _ proof it to appear upon the record that he would pu „ a and that he would not dispute ary®ase * ® is m0„ made out. The court again reserved motion tion and, on the 28th of February, 1906|jaIL £avor 0f and rendered judgment against the plair a the defendant. at the It is admitted by both sides and it is the fac en o,ranted, outset, the defendant’s motion should have beV because because the court was clearly without jurisdictiiF^ of the failure of the plaintiff to comply with sect? the Municipal Court Act. The defendant when ' that motion had not appeared generally. It was a appearance for the sole purpose of making the motio: that appearance did not give the court jurisdiction person of the defendant. It may be argued that the de. ant should not have made a motion in terms to set asid complaint, but it is clear that the real proceeding was tc aside the service of process and the record shows that justice and the parties all understood that such was the tion. We, therefore, proceed upon the presumption that motion was to set aside the process. The appellant contends that the filing of a verified answer by the defendant, after the denial of the motion to set aside the service of process, was, in effect, a voluntary general appearance and from that time on the court obtained jurisdiction of the person, and that the jurisdictional defect complained of was thereby waived. He claims, further, that this waiver was empha- sized by the fact that the defendant took part in the trial and cross-examined witnesses. The main question to be determined on this appeal is whether a defendant, who appears specially in an action in a Municipal Court and objects to the jurisdiction of the court over the person and is overruled by the court, waives the question of jurisdiction over the person by filing an answer and taking part in the trial, although he 'expresssly renews his objection to the jurisdiction before any testimony is taken and again, at the close of the plaintiff’s case, puts in no defense and expressly states that he makes no motion on the merits. In the case of Jones v. Jones, 36 Hun, 414, 418, the court say, in effect, that it has been held to be the law, in cases arising not only in this State but in other States and in the Supreme Court of the Hnited States, that a court in which a legal proceeding has been carried on without obtaining jurisdiction of the person of the defendant could not acquire such jurisdiction by his appearance for the purpose of" objecting and alleging this want of it and that, if his plea or answer were overruled, he might still contest the merits of the action Avitliout depriAÚng himself of the validity of the objection taken to the jurisdiction of the tribunal. This case was affirmed on appeal to the Court of Appeals, 108 N. Y. 415. At page 425, Judge Andrews, in his opinion, says: “In Avery v. Slack (17 Wend. 85), it Avas held that a party Avho appeared and objected to the validity of process, did not Avaive the objection by ansAvering and going to trial on the merits after his objection had been overruled. The principle has been applied in a great variety of cases and there is substantial uniformity in the decisions to the effect that a party not properly served Avith process, so as to give the court jurisdiction of the person, does not Avaive the objection or confer jurisdiction by answering over and going to trial on the merits after he has ineffectually objected to the jurisdiction and his objection has been OArerruled.” In support of this principle the case of Harkness v. Hyde, 98 U. S. 476, was cited. At page 419 Mr. Justice Field, delivering the opinion of the court, says: “ The right of the defendant to insist upon the objection to the illegality of the service was not waived by the special appearance of counsel for hun to move the dismissal of the action on that ground, or Avhat Ave consider as intended, that the service be set aside; nor, Avhen that motion was overruled, by their answering for him to the merits of the action. Illegality in a proceeding by which jurisdiction is to be obtained is in no case waived by the appearance of the defendant for the purpose of calling the attention of the court to such irregularity; nor is the objection waived when being urged it is overruled and the defendant is thereby compelled to answer. He is not considered as abandoning his objection because he does not submit to further proceedings without contestation. It is only where he pleads to the merits in the first instance, without insisting upon the illegality, that the objection is deemed to be waived.” In the case of Lazzarone v. Oishei, 2 Misc. Rep. 200, 206, Judge Hatch writing for the court (General Term of the Buffalo Superior Court), and holding that the .court below had no jurisdiction to try the case because it appeared that there was no sufficient service of the summons, says: “When the parties appeared before the judge, defendant objected to the jurisdiction of the court upon the groun’d that there was no sufficient service of the summons. This objection raised the question of jurisdiction of the person of the defendant. * * * It is urged that he waived this objection. But it appears that he objected, and that the court overruled his objection. He was then either compelled to appear or suffer judgment by default to pass against him. I do not understand that an appearance and litigation under such circumstances has ever been held to constitute a waiver of the question of jurisdiction' of the court. On the contrary, every adjudicated case that has fallen under my observation refutes such doctrine.” In the case of Boynton v. Keeseville Electric Light & Power Co., 5 Misc. Rep. 118, affirmed without opinion 18 Hun, 609, Mr. Justice McLaughlin says: “ It was further contended by the respondent upon the argument that, inasmuch as the defendant appeared and filed an answer and took part in the trial, after its objection to the jurisdiction of the court had been overruled, that was a sufficient appearance on the part of the defendant, and gave the court jurisdiction. In other Words, that by thus appearing, the objections previously taken to the jurisdiction of the court were waived. Such contention is not supported by the anthorities.” The case of Reed v. Chilson, 142 N. Y. 152, does not contradict the views expressed in the cases cited above. In the Reed case, the defendants at the outset entered a general appearance by an attorney who served a general notice of retainer. #Thus they submitted to the jurisdiction of the court voluntarily. But when they subsequently raised the question of jurisdiction in their answer, the court held that it was too late, because the appearance was general and voluntary. I see nothing in the language of the court in this case that leads to an inference that, where a defendant’s initial action is an objection to the jurisdiction of the court under a special appearance, he waives the question of jurisdiction by filing an answer and continuing the trial. The difference between that case and the case at bar is radical. In that case the defendant’s first step was to appear generally and answer, raising his jurisdictional question in his answer. In the case at bar, the defendant’s first step was his appearance, specially, to raise the question of jurisdiction ; and his answer was not filed until he had been overruled on the question of jurisdiction. We have considered the cases of Woodruff v. Austin, 16 Misc. Rep. 544; Goldstein v. Goldsmith, 28 id. 569; Schillinger v. Herrmann, 5 id. 282; Sweetzer v. Kembert, 11 id. 107; Hutton v. Murphy, 9 id. 152, but do not consider that they require us to hold views different from those expressed above. Under the authorities referred to, we think that the defendant did not waive the question of jurisdiction by filing his answer and taking part in the trial and that the learned justice committed no error in rendering judgment for the defendant. We think, however, that the judgment should be modified by providing that the action be dismissed with costs without prejudice to a new action (Mun. Court Act, § 248), and, as so modified, the judgment is affirmed with costs,

Gildebsleeve and Clinch, JJ., concur.

Judgment, modified by providing that action be dismissed with costs without'prejudice to a new action, and, as so modified, affirmed, with costs.  