Heinzer v. Kretz , 154 N.Y.S. 197 ( 1915 )

Per Curiam.

The defendant Coyle appeals from an order denying his motion to set aside and vacate the substituted service of the summons in this action and the judgment entered herein, and for such other and further relief as to the court might seem just and proper.

Said defendant appearing specially made the application to the court below on the grounds that at the time of the beginning of this action the appellant resided at St. Louis, Mo., and that the papers upon which the order for substituted service was granted were insufficient to confer jurisdiction upon the court. The motion was denied apparently for want of power.

While it has been held that the Municipal -Court Act permits a'party to raise an objection to the jurisdiction of the court over the person only at the trial, or, if he fails to appear, by appeal to this court under section 311 of that statute, and that the Municipal Court has no power to rule upon an objection to its jurisdiction except upon the trial (Friedberger v. Stulpnagel, 59 Misc. Rep. 498; Review & Record Co. v. Gilbreth, 65 id. 503), nevertheless where a defendant, though appearing specially in order to preserve his rights to object to the jurisdiction of the court, seeks a trial at which the objection can be properly raised, the court may properly open the so-oalled “ default” and set the case for traverse to the jurisdiction and then try the issues raised by the traverse. Roberts & Lewis Co. v. Dale, 74 Misc. Rep. 392.

Although the appellant did not specifically ask to have the case set down for traverse, under his prayer for other and further relief the court had power to follow the procedure referred to in the case cited.

Order reversed, with ten dollars costs, and motion remitted to the court below for action as herein indicated.

Present: Guy, Bijur and Page, JJ.

Order reversed, with ten dollars costs.