#### Henry Loeb, Respondent, *v.*Benjamin C. Smith, Appellant.

(Supreme Court, Appellate Term,

July, 1898.)

Municipal Óourt of Hew York — Improper “alias” summons.— Hature of the judgment rendered thereon.

A clerk of a Municipal Court of the city of New York has no power, under section 1303 of the Consolidation Act (Laws of 1882, chap. 410), to issue- a second or “ alias *’r*summons unless proof has been made by the marshal, or other person, having the first summons to serve, of his inability to find the defendant.

Although a judgment by default taken upon the service of such an “alias” summons is void, the judgment will be so far considered, by the Appellate Term, to be in existence that it will not be vacated, but will merely be reversed.

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, seventh district, rendered by the court in favor of the plaintiff, by default.

The opinion states the material facts.

Samuel S. Watters, for appellant.

M. Steinert, for respondent.

Giegerich, J.

The amended return- shows that on the' 24th day of December, 1897, a summons was issued by the clerk of. the District Court in the city of Hew York for the Seventh Judicial District, returnable on the 5th day of January, 1898; that on the last-mentioned date an “ alias ”' summons was issued returnable before the Municipal Court of the city of Hew York, borough of Manhattan, seventh district, on the 17th day of January, 1898, and that on the said last-mentioned date judgment was given the plaintiff, by default, upon proof of the service of the summons upon the defendant on the 6th day of January, 1898.

The record fails to disclose any return or affidavit of the person deputed to serve the summons that he could not find the defendant so as to serve him therewith, and -from the uncontradicted averments contained in the affidavit of the defendant’s attorney, which forms part of the. amended return, such “ alias ” summons was *201issued by the clerk without his having required such return or ■affidavit.

Section 1303 of the Consolidation Act, which applies to the Municipal Court, of the city of Hew York (see Birdseye’s Greater New York Charter, XLV), in part provides: “If the marshal or other person having the summons to serve cannot find the defendant so as to serve him therewith, as required by this title, he must so return, and the clerk shall, at the request of the plaintiff, continue from time to time to issue others until the defendant is served.”

This enactment was evidently designed to prohibit the clerk of a Municipal Court from issuing an “ alias ” summons until proof of inability to serve the defendant is presented. Langbein’s Municipal Court Practice (4th éd) p. 161, citing Doughty v. Hess, Daily Reg., January 26, 1878, vol. 13, No. 22.

If this view is well founded, then as the said court is one of limited jurisdiction, and could only exercise such power as has been specially conferred by statute (Schwartz v. Wechler, 2 Misc. Rep. 67, 71; Hanlon v. Metropolitan Life Ins. Co., 9 id. 70, 72) it is apparent that, under the circumstances, the “ alias ” summons was isstied without lawful authority, and the court below never acquired jurisdiction to render the judgment appealed from: Therefore the judgment was void, but although void, it is so far to be considered in existence by this appellate court that it may be reversed and the parties restored to the position they originally occupied. Allison v. Snider Preserve Co., 20 Misc. Rep. 367, 396; Potter v. New York City Mission Society, 23 Misc. Rep. 671.

It follows from these views that the judgment should be reversed, with costs.

Beekman, P. J., and Gildersleeve, J., concur.

Judgment reversed, with costs,