Wilkinson v. New York City Railway Co.

This is an appeal from a judgment of the Municipal Court, Third District, in favor of the defendant for $5 costs and dismissing the plaintiff’s complaint. The summons was served on the defendant April 3, 1906. On the same day the defendant gave the plaintiff a written notice of appearance, which was filed in court and which appears in the return. The return day of the summons is designated as the 12th day of April, but no year is indicated. However, on the 12th day of April, 1906, both plaintiff and defendant were present in court when the case was called for trial. The plaintiff was ready to proceed with the trial, but the defendant moved for a nonsuit on the ground that the summons was defective in failing to state the year as well as the day of the return. This motion was granted, and judgment entered as above stated.

An action in the Municipal Court of this city is begun either by the service of a summons or by the voluntary appearance and joinder of issue by the parties. Section 26, Municipal Court Act, Laws 1902, p. 1498, c. 680. This summons was defective, and its service might have been set aside on motion, had the defendant appeared specially for that motion. But defendant appeared generally, and so gave the court jurisdiction over the person of the defendant, notwithstanding the omission of the date from the summons. The general appearance was a waiver of the defect in the summons, and, as was said in the case of Kramer v. Gerlach, 28 Misc. Rep. 525 , 527, 59 N. Y. Supp. 855 , 856, “conferred jurisdiction upon the court, even if not otherwise acquired.” See, also, Reed v. Chilson, 142 N. Y. 152 , 36 N. E. 884 .

For these reasons the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.