
    Herman V. Evers, Respondent, v. Howard Gould, Appellant.
    (Supreme Court, Appellate Term,
    June, 1907.)
    Municipal Courts — Procedure — Pleading — Answer — Time to answer — After decision on demurrer — Granting more than eight days divests jurisdiction.
    Where by the record on appeal from a judgment of the Municipal Court of the city of New York it appears that defendant, on March 25, 1907, filed a written demurrer to an oral complaint; that at some time prior to April fifth the court rendered judgment overruling the demurrer and extending the time of defendant to answer until April sixteenth, but the record does not disclose that defendant consented to a longer period than eight days in which to plead or that he ever appeared in court after interposing his demurrer, the court will be deemed to have been divested of jurisdiction and without authority to render final judgment.
    Appeal by the defendant from a judgment overruling a demurrer interposed by the defendant in the Municipal Court of the city of New York, eleventh district, borough of Manhattan.
    Nicoll, Anable & Lindsay (Archibald R. Watson and E. Mortimer Boyle, of counsel), for appellant.
    Pheil & Gilman, for respondent.
   Platzek, J.

The respondent’s brief embraces many statements extraneous of the record, and, as to such, it cannot be regarded. The record is conclusive upon this court, and shows that, when the parties met in the lower court for pleading, on March 25, 1907, the plaintiff’s complaint was an oral one and was for breach of contract, damages to personal property.” ' The defendant interposed a written demurrer thereto and, as appears by an indorsement upon the summons, briefs were to be submitted on March 30, 1907. The defendant made no further appearance and a judgment overruling the demurrer was rendered by. the court. At what time this judgment was rendered does not appear, but that it was rendered prior to April fifth is evident from the statement contained therein as follows: “ Case returned to calendar for pleading on the fifth day of April. The time for' the defendant to answer is extended to the 16th day of April, 1907, on payment of costs.” On April sixteenth, the defendant not appearing, the case was again adjourned until April nineteenth, at which date the plaintiff took an inquest and a judgment was rendered in his favor. From the judgment overruling the demurrer and the final judgment in favor of the plaintiff the defendant appeals. Section 145, subdivision 3, of the Municipal Court Act provides, that "Where a demurrer has been interposed and disallowed the court must * * * grant leave to plead as if no demurrer had been interposed * * * but the time to file said pleading, shall not be extended longer than eight days from the time the decision on the demurrer is rendered, unless on consent of the parties.” The phraseology of this section is somewhat different from that of section 193 of the Municipal Court Act relating to adjournments. In the latter section it is provided that an adjournment may be had for a longer period than eight days by consent, “or where neither party objects to the same,” and under that section it has been held that it must affirmatively appear that an objection to a longer adjournment than eight days was made or the regularity of such an adjournment will be presumed. Wood v. Spofford, 29 Mise. Hep. 357. It would seem that, under the language used in section 145, subdivision 3, consent to a longer period than eight days in which to plead must appear affirmatively to have been given, at least, it must appear in the record, either that the parties were present and that, from failure to object, consent might be presumed, or express consent must be shown. In the case at bar the -record does not disclose that, after the demurrer was interposed, on March 25, 1907, the defendant ever again appeared in court, or in any way consented to the time given by the court as aforesaid, so that the extension of the time to plead from April fifth to April sixteenth divested the court of jurisdiction and it had no authority to render judgment thereafter. A judgment void for want of jurisdiction can be appealed from. Schiller v. Hardenburgh, 52 Misc. Rep. 482, and cases cited.

This disposition of the case renders it unnecessary to pass upon the merits of the demurrer.

Gildersleeve and Seabury, JJ., concur.

Judgment reversed, with costs, and complaint dismissed.  