
    Max Abrahamson, Respondent, v. John W. U. Koch, Appellant.
    (New York Common Pleas—General Term,
    February, 1894.)
    A defendant who has appeared, answered and defended an action without objection is precluded from thereafter claiming that the court did not obtain jurisdiction of him by service of summons.
    Where there was a conflict of evidence as to the manner in which the accident occurred and the amount of the damages, the finding of the justice as to those matters is conclusive upon the appellate court.
    A new trial, if one is directed upon appeal from a District Court in the city of New York, must be had in the District Court; section 3068 of the Code applies only to appeals from Justices’ Courts,
    Appeal from a judgment of the District Court in the city of New York for the fourth judicial district, rendered by the justice, without a jury, in favor of the plaintiff.
    Action to recover damages for injury to plaintiff’s wagon and its contents, alleged to have been occasioned by defendant’s carelessness, whereby a collision resulted between the wagons of the respective parties.
    
      Hoffman <& Iloffma/n, for respondent.
    
      Fred Dieffenbaeh, Jr., for appellant.
   Bischoff, J.

Having appeared, answered and defended the action without objection, defendant is now precluded from urging that the court below did not acquire jurisdiction of him by service of the summons. Cushingham v. Phillips, 1 E. D. Smith, 417; Sperry v. Major, Id. 361; Andrews v. Thorp, Id. 615 ; Hogan v. Baker, 2 id. 22; Ingersoll v. Gillies, 3 id. 119 ; Miln v. Russell, Id. 303; Dempsey v. Paige, 4 id. 218.

Upon all the evidence adduced op the trial there appears but a fair conflict as to the manner in which the accident occurred, and as to the effect of the collision upon plaintiff’s wagon and its contents; also as to the value of the necessary repairs. The determination of these questions of fact was-properly for the justice below, and his findings that the accident was caused by defendant’s carelessness, and without contributory negligence on plaintiffs part, and that the proper amount of damages was in the sum for which judgment was rendered, must he conclusive in view of the record submitted. Weiss v. Strauss, 39 N. Y. St. Repr. 78. Appellant does not. rely upon exceptions taken to rulings on the trial, and an examination of them discloses no error.

Section 30G8 of the Code of Civil Procedure, which provides for a new trial in the appellate court, applies to appeals from the Justices’Courts only. Section 3213 requires the new trial, if one is directed upon appeal from the District Court in the city of FTew York, to be had in the District Court.

The judgment should he affirmed, with costs.

Giegerich, J., concurs.

Judgment affirmed, with costs.  