
    Rosalia Sobel, Appellant, v. Nicolai Judovits, Respondent.
    Supreme Court, Appellate Term, First Department,
    June 18, 1959.
    
      
      Frans Goldner and Joseph Lewis Simon for appellant.
    
      Harold H. Rothman and Harris Koppelman for respondent.
   Per Curiam.

On the overruling of the traverse and the consequent denial of the motion to vacate the default judgment, on the ground of nonservice of the summons, which motion was made more than one year after service of a copy of the judgment with notice of entry, the court was without power to open the default. (N. Y. City Mun. Ct. Code, § 129, subd. 2.) Section 88 of the Municipal Court Code does not apply to this situation.

The order overruling traverse should be modified by striking therefrom the provision permitting defendant to interpose an answer, and as modified affirmed, with $10 costs to appellant.

Appeal from order of November 12, 1958 should be dismissed, without costs.

Concur — Steuer, J. P., Hofstadter and Aurelio, JJ.

Order modified, etc.  