
    The Review and Record Company, Respondent, v. Frank B. Gilbreth, Appellant.
    (Supreme Court, Appellate Term,
    December, 1909.)
    Municipal Courts: Procedure; Process — Service — Waivers; Vacation of judgment — For failure to serve process: Review—Waiver of appeal; Amendments and additional proofs.
    The Municipal Court of the city of New York has no power to set aside a judgment rendered by it against a .defendant who was not served with process.
    The defendant, however, may waive the jurisdictional defect and submit to the jurisdiction of the court and ask that his failure to appear be regarded merely as a default not caused by his own negligence; thereupon it is the duty of the court to set aside the judgment and appoint a day for the trial of the cause.
    The defendant by a motion to set aside the judgment by default for nonservice of process does not lose his .right to appeal from the judgment, as his motion is not equivalent to a general appearance.
    The affidavits on the motion to set aside the'default judgment should be considered on appeal from such judgment only after reasonable opportunity has been given the respondent to meet them, and copies of such affidavits should be served with the notice of argument.
    Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, first district, borough of Manhattan, rendered in favor of the plaintiff.
    Wait & Foster, for appellant.
    Robert L. Turk, for respondent.
   Lehman, J.

The plaintiff recovered a judgment against the defendant upon his failure to appear on the return day. Thereafter the defendant moved to set aside and vacate the judgment, on the ground that the summons had never been served upon him. The justice below thereupon endorsed upon the motion papers: “Motion granted. Case set down for Sept. 24th, 1909.” If the defendant was not served, the court had no jurisdiction over him. It cannot set aside its judgment for lack of jurisdiction, because no such power is given by the Municipal Court Act. Friedberger v. Stulpnagel, 59 Misc. Rep. 498.

The defendant may, however, waive the jurisdictional defect and submit himself to the jurisdiction of the court. He may then ask the court to regard his failure to appear merely as a default not caused by his own negligence, and it becomes the duty of the court to set aside the judgment taken by default and to set a day for the trial. Where the defendant has by such a motion, actually submitted to the jurisdiction of the court, he obviously loses his right to appeal from the judgment because of lack of jurisdiction. A preliminary question, therefore, arises upon this appeal as to the right of the defendant at this time to take an appeal from the judgment.

I do not find that the defendant has waived this right. A motion to set aside a judgment for nonservice of process is not equivalent to a general appearance. Noble v. Crandall, 49 Hun 414. The defendant has not moved to have the cause set down for trial, but, on the contrary, appears to have protested against such a course. He has, therefore, not waived the jurisdictional defect claimed by him to invalidate the judgment, and is not barred from taking an appeal from such judgment. Mishkind-Feinberg Realty Co. v. Rosenhaft, 119 N. Y. Supp. 682.

The defendant apparently relies mainly upon the affidavits presented to the court below on the unauthorized motion to vacate the judgment, but I find no record of any notice given to the plaintiff of such intention. This motion was made after the judgment was rendered, and the affidavits should be considered on appeal only after reasonable opportunity has been given the respondent to meet such appeal. Copies of the affidavits should be served with the notice of argument. Austen v. Columbia Lubricants Co., 85 N. Y. Supp., 362. The one affidavit presented for the first time on this appeal is insufficient to show lack of jurisdiction.

The ajipellant may renotice the appeal for the February Term, upon payment of ten dollars costs; otherwise the judgment should be affirmed with costs.

Giegerich and Goff, JJ., concur.

The appellant may renotice the appeal upon payment of ten dollars costs, otherwise judgment affirmed, with costs.  