
    The State Board of Pharmacy, Respondent, v. Robert Jacob, Appellant. Same, Respondent, v. Abraham Wagner, Appellant.
    (Supreme Court, Appellate Term,
    March, 1905.)
    Municipal Court Act — Section 38 — Action for penalty — Endorsement of summons — Amended affidavit of service — Eight to file.
    Where in an action brought in the Municipal Court of the city of New York, to recover a statutory penalty, the original summons and copy thereof had upon it the required reference to the cause of action, the fact that the copy alias summons served with the copy summons, was not endorsed “ action for a penalty, etc.” as required by section 38 of the Municipal Court Act did not deprive the court of jurisdiction.
    It not appearing that defendant made objection to the filing of an amended affidavit of service, the question of plaintiff’s right to file it cannot be considered on appeal.
    Appeals by the defendants from orders denying defendants’ motions to set aside judgments rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, tenth district, borough of Manhattan.
    John T. Loew, for appellants.
    H. A. Herold, for respondent.
   O’Gorman, J.

These actions were brought by the plaintiff to recover penalties imposed by chapter 667 of the Laws of 1900. Service of the summons, when first issued, not having been made upon the defendants, alias summons were issued, served, and returned with an affidavit of such service indorsed thereon. The appellants’ main contention herein is that the copy alias summons- served upon the defendants, not hearing thereon the indorsement, “ action for a penalty pursuant to the provisions of chapter 667 of the Laws of 1900 (§§ 198, 201),” as required by section 38 of the Municipal Court Act (L. 1902, eh. 580), the court below acquired no jurisdiction of the defendants, and therefore erred in not granting the defendants’ motion made to set aside the service and vacate the judgments. The orders appealed from recite that the plaintiff was allowed to file “ an amended affidavit of service showing the indorsements on the copy summons served,” and the defendants’ counsel admits in his brief that “ a copy of alias summons together with a copy summons was served upon the defendant.” The only object of the indorsement referring to the cause of action is to give the person sued notice of the nature of the action. Townsend v. Hopkins, 9 Civ. Pro. 257. And, as the original summons and the copy summons served had upon it the required reference to the cause of action, and the copy summons was served with the alias summons, the object of the statute was accomplished as well and as effectually as though such indorsement had also been made upon the alias summons. It does not appear that the defendants made any objection to the filing of the amended affidavit of service,” which was evidently made for the purpose of showing that the copy summons, with the proper indorsements thereon, as aforesaid was served with the copy alias summons. It is, therefore, now too late to question the right of the plaintiff to file such amended affidavit.”

Orders in each case affirmed, with costs.

Scott and Blanchard, JJ., concur.

Orders affirmed, with costs.  