Majority
p. 512Max Abrahamson Resp’t, v. John W. U. Koch, Appl’t. (New York Common Pleas, General Term, Filed February 5, 1894.)
Headnote
1. Appeal—Waiver.A defendant, by appearing, answering and defending an action without objection, is precluded, on appeal, from urging that the court below did not acquire jurisdiction of him by service of the summons.
2. Same—New Trial.
§ 3068 of the Code does not apply to appeals from the District Court of the city of New York.
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 & Hoffman (of counsel), for resp’t, Fred. Dieffenbach, Jr., for appl’t.
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. Moore, id. 361; Andrews v. Thorp, id. 615 ; Hogan v. Baker, 2 id. 22 ; Ingersoll v. Gillies, 3 id. 119; Miln v. Russell, id. 803; Dempsey v. Paige, 4 id. 218.
p. 513
Upon all the evidence adduced on 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 plaintiff’s part, and that the proper amount of damages was in the sum for which judgment was rendered, must be conclusive in view of the record submitted. Weiss v. Strauss, 39 St. Rep., 78 . Appellant does not rely upon exceptions taken to rulings on the trial, and an examination of them discloses no error.
§ 3068 of the Code of Civil Procedure which provides for a new trial in the appellate court applied to appeals from the justice’s court only. § 8213 requires the new trial, if one is directed upon appeal from the district court in the city of Hew York, to be had in the district court.
Judgment affirmed, with costs.