Eugester v. Rubenstein , 156 N.Y.S. 222 ( 1915 )

Per Curiam.

Upon October 6,1915, a summons was served upon tbe defendant herein, issued out of tbe Municipal Court, and based upon an order for substituted service. On October eighth tbe defendant appeared specially, and filed with tbe clerk of tbe court a notice of appearance, and an objection to the jurisdiction of the court, pursuant 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 ten dollars 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 of the action may be taken by filing a notice of special appearance as hereinbefore provided. All other objections which heretofore might be 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 person or the subject matter of the action, it must be by filing a notice of special appearance, but there seems to be no provision for an appeal from an order made determining such a motion, in the first instance.

Section 154, subdivision 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.

Present: Lehman, Bijur and Finch, JJ.

Motion denied.