
    Clement H. Smith, Respondent, v. Isaac L. Dunn, Appellant.
    (Supreme Court, Appellate Term,
    February, 1905.)
    Municipal Court — Jurisdiction — Amount involved — Remission of excess — Municipal Court Act, § 250.
    Where both the summons and the complaint in an action commenced in the Municipal Court of the city of New York demand judgment for $500 and interest, a denial of a motion to dismiss the complaint upon the ground of want of jurisdiction is reversible error.
    The provision of section 250 of the Municipal Court Act permitting a party to remit the excess if the sum found due “ exceeds the sum for which the court is authorized to enter judgment ”, applies only to cases where said court has acquired jurisdiction in the first instance.
    Appeal by the defendant from a judgment, rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, second district, borough of The Bronx.
    Strasbourger, Weil, Eschwege & Schallek, for appellant.
    Langbein & Langbein, for respondent.
   McCall, J.

The summons in this action was issued upon the 8th day of September, 1904, and demanded judgment against the defendant for “ the sum of five hundred dollars and interest from the 25th day of July, 1904 together with the costs of this action.” Accompanying the summons and served at the same time was a verified complaint in which the demand for judgment was in the same words as contained in the summons. A motion was made by the defendant to dismiss the complaint upon the ground that the court had no jurisdiction. The plaintiff thereupon offered to waive the interest,. and judgment was subsequently rendered for the plaintiff for the sum of $500 and costs.

We think the motion to dismiss the complaint should have been granted. Section 1, subdivision 1, of the Municipal Court Act, gives the Municipal Court jurisdiction in this class of cases only where the sum claimed does not exceed five hundred dollars exclusive of interest and costs.” An action is commenced by the service of a summons, and it is such summons and the service thereof that give the court jurisdiction. It was held in Heffron v. Jennings, 66 App. Div. 443, that although the summons did not specify any sum for which judgment would be taken * * * it did state that judgment would be taken against the defendant for the relief demanded in the complaint, and that the complaint which was served at the same time as the summons demanded a sum exceeding the jurisdiction of the court * * * the court acquired no jurisdiction for any purpose whatever.” This was followed by this court in Pearson v. Hughes, 88 N. Y. Supp. 1059. In the case at bar both the summons and complaint claimed $500 and interest. Interest is a direct part of the claim upon which the plaintiff sued, and the sum claimed ” exceeded the jurisdiction of the court. It is true section 250 of the Municipal Court Act permits a party to remit the excess if “ the amount due * * * exceeds the sum for which the court is authorized to enter judgment,” but that section applies only to cases where the court has acquired jurisdiction in the first instance, and is not, therefore, to be divested of such jurisdiction by a finding that there is an amount due a party greater than the court can enter judgment for, where such party is willing to remit the excess. The judgment must be reversed.

Scott and Giboebich, JJ., concur.

Judgment reversed, with costs, and complaint dismissed.  