
    Bacilios Spiropulos, Respondent, v. John Magnioni, Appellant.
    (Supreme Court, Appellate Term,
    December, 1905.)
    Municipal courts — Review—Orders reviewable.
    Judgment — Opening or vacating on motion —Want of service of process — When order vacating judgment deemed order opening default.
    Where a motion to set aside a judgment of the Municipal Court is made upon the ground that defendant was not served with the summons, this court, on appeal from so much of the order as directs the case to be set down for trial upon a day certain, must infer that the justice found the disputed fact of service in favor of plaintiff and that the judgment was set aside as matter of grace; the order setting aside the judgment, therefore, was one opening a default and is not appealable. (Municipal Court Act, § 257.)
    ■ Appeal by the defendant from an order of the Municipal Court of the city of ¡New York, second district, borough of Manhattan, opening a default and setting the case down for trial.
    ¡Nelson L. Reach, for appellant.
    Abraham B. Bevy, for respondent.
   Bischoff, J.

Asserting that he was not served with the summons, the defendant moved to set aside the judgment, and the motion was granted, with a further direction that the case be set down for trial upon a day certain. From so much of the order as contains the latter direction the defendant has appealed.

A motion to open a default and to set aside a judgment implies the existence of jurisdiction in the court to render the judgment. If no jurisdiction has been obtained, there has been no default ” through non-appearance-, and the statute, as it appears, has conferred upon the Municipal Court no power to set aside judgments upon the ground that they were rendered without jurisdiction because the summons was not served upon the defendant.

. The remedy is by appeal from the judgment. Austen v. Columbia Lubricants Co., 85 N. Y. Supp. 362.

The theory of the present appeal is that the justice determined that the summons had not been served and followed this determination with a direction that the cause be tried none the less. Such a direction, it is claimed, renders the order erroneous (Szerlip v. Baier, 21 Misc. Rep. 331) and appealable, because within the scope of section 253 of the Municipal Court Act and not within the exception contained in section 257, since the direction was excessive of the mere opening of a default.

The actual determination of the motion by the justice, as gathered from the order, does not accord with this contention.

Having set the case down for trial, which he could not do if the defendant had not been served with the summons (Szerlip v. Baier, supra), the justice, we must infer, found the disputed fact of service in favor of the plaintiff; and the granting of the motion to set aside the judgment is to” be deemed an act of grace with which the defendant has no cause to quarrel.

Thus the appeal is from an order opening a default, which is not appealable (Municipal Court Act, § 257), and the character of the order is not changed in such wise as to render it appealable, because an incidental direction was made for the trial of the cause. This direction was essential, and the statute contemplates its embodiment in the very order which may not be reviewed upon appeal. Municipal Court Act, §§ 253, 257. Appeal dismissed with costs.

Scott and MacLbah*, JJ., concur in result.

Appeal dismissed, with costs.  