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Smith v. Levine

113 N.Y.S. 982 Court N.Y. App. Term Decision date 1909-01-08 English

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p. 982
SMITH v. LEVINE et al.
(Supreme Court, Appellate Term.
January 8, 1909.)

Headnote

Courts (§ 189[1] )—Municipal Courts—Defective Service—Waiver.
Under Municipal Court Act (Laws 1902, p. 1498, c. 580), § 26, providing that an appearance shall constitute a waiver of defects of service, defendant, after answer, could not object that he was brought into court on alias summons irregularly issued.
[Ed. Note.—For other cases, see Courts, Cent. Dig. § 409; Dec. Dig. § 189.*]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Wolf Smith against Isaac Levine and another. Judgment for plaintiff, and defendant Nathan Lacher appeals.
Affirmed.
Argued before GILDERSLEEVE, P. J., and BISCHOFF, and GUY, JJ.
Stanislaus N. Tuckman, for appellant.
Israel Levine, for respondent.

The point, now raised by the defendants fot-' thé first time, that he was brought into court upon an alias summons irregularly issued, does not affect the jurisdiction of the justice to render the judgment appealed from, in view of this party’s appearance and his filing of an answer. Municipal Court Act (Laws 1902, p. 1498, c. 580), § 26. The justice’s finding, upon the facts, that the insertion of the date in the note in suit was not an alteration of the instrument, nor a circumstance affecting the indorser’s agreement with the payee, is supported by the evidence as to the transaction between maker, indorser, and payee, and we find no ground for disturbing the result.

Judgment affirmed, with costs.