
    KUTYN v. COHEN et al.
    (Supreme Court, Appellate Term.
    May 7, 1909.)
    Appearance (§ 24)—Want of Service—Waiver.
    Defendant, by appearing and answering without objecting to the jurisdiction of the court, waived his "right to question the validity of the judgment because no summons had ever been served.
    [Ed. Note.—For other cases, see Appearance, Cent. Dig. §§ 118-143; Dec. Dig. § 24.*]
    Appeal from Municipal Court, Borough of Manhattan, Second District.
    Action by Paul Kutyn against Joseph Cohen and another. From a Municipal Court judgment for plaintiff, defendant Cohen appeals.
    Affirmed.
    Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.
    Isidor Cohn, for appellant.
    Joseph Kleiner, for respondent.
    
      
      For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
   GILDERSLEEVE, P. J.

The defendant Cohen appeals from a judgment rendered against him upon the ground that the summons in the action was never served upon him. He presents affidavits in support of his appeal tending to show such to be the.fact. The justice’s return, however, shows that on the return day, the case being called, the defendant appeared by an attorney, who answered for him and interposed, without objecting to the jurisdiction of the court, an oral plea to the plaintiff’s oral complaint, a general denial, and the case was adjourned by consent for trial! We are bound by the return, and as it now stands the voluntary appearance of the defendant precludes him from questioning the validity of the judgment on the ground of want of jurisdiction in the court below.

Judgment affirmed, with costs. All concur.  