Eugester v. Rubenstein — 156 N.Y.S. 222

Majority

p. 222

(92 Misc. Rep. 407)

EUGESTER et al. v. RUBENSTEIN.

(Supreme Court, Appellate Term, First Department.

November 23, 1915.)

Headnote

Courts <@=>190—Municipal Court—Appeals—Statute.

Under Municipal Court Code (Laws 1915, c. 279) § 88, providing that an objection that the court has no jurisdiction of the person or the subject-matter may be taken by filing a notice of special appearance, where an order is made determining defendant’s motion objecting to the jurisdiction there is no appeal therefrom; section 154, subd. 7, permitting an appeal from an order sustaining or overruling an objection taken to a pleading, as prescribed in sections 88 and 89, having no application.

[Ed. Note.—For other cases, see Courts, Dec. Dig. <@=>190; Appeal and Error, Cent. Dig. § 103.]

<@^>Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Action by Fidel Eugester and others against Jacob Rubenstein. Upon an order of the Municipal Court overruling defendant’s objections to the jurisdiction, and denial of his motion for leave to appeal to the Appellate Term, he moves for an order allowing an appeal.

Motion denied.

Argued November term, 1915, before LEHMAN, BIJUR, and FINCH, JJ.

Blumensteil & Blumensteil, of New York City, for plaintiffs.

Israel Ellis, of New York City, for defendant.

Upon October 6,1915, a summons was served upon the defendant herein, issued out of the Municipal Court, and based upon an order for substituted service. On October 8th the defendant appeared specially, and filed with the clerk of the court a notice of appearance, and an objection to the jurisdiction of the court, pursuant

p. 223

to section 88 of the Municipal Court Code which went into effect September 1, 1915. Upon a hearing of the objections, the same were overruled, by the trial justice, and the defendant was given leave to plead within two days thereafter, upon payment of $10 costs. No answer having been filed, a judgment was entered by default against the defendant. The defendant thereupon made a motion before the justice who heard the objections, for leave to appeal to the Appellate Term, which was denied, and he now makes the same motion in this court.

Section 88 of the Municipal Court Code provides that:

“An objection that the court has no jurisdiction of the person of the defendant or no jurisdiction of the subject [matter] of the action, may be taken by filing a notice of special appearance as hereinbefore provided. All other objections which heretofore might have been taken by demurrer may be taken by motion. * * * ”

It will be seen that, where objection is taken to the jurisdiction of the court over either the person or the subject-matter of the action, it must be by filing a notice of special appearance; but there seems to he no provision for an appeal from an order made determining such a motion, in the first instance.

Section 154, subd. 7, permits an appeal from an order sustaining or overruling an objection taken to a “pleading” as prescribed in sections 88 and 89 of the Municipal Court Code. Clearly an objection taken to the jurisdiction of the court is not an objection taken to a pleading.

Motion denied.