#### The Whitman & Barnes Mfg. Co., Respondent, *v.*George W. Hamilton, Appellant.

(Supreme Court, Appellate Term,

April, 1899.)

1. Municipal Court of the city of New York —Action transferred to proper, district of residence only on proof.

Where no proof is made of the allegation that an action has been brought in the wrong.. district of the Municipal Court of the , city of New York, a motion to transfer the action to the district of the. alleged residence of the defendant is properly denied.

*199*2.*Same — Judgment during an adjournment void — Requisites of a judgment by default.

During an adjournment granted to the defendant by such Municipal Court, it has no power to render judgment against him although he has failed to file his answer in the *interim*as ordered; nor can the plaintiff take judgment by default in such court where no verified complaint was served with the summons.

Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court, first district, borough of Manhattan.

Dailey, Bell *&*Crane, for appellant.

Benjamin *&*Loeser, for respondent.

Freedman, P. J.

The plaintiff in this action alleges that it is a foreign corporation, organized under the laws of the state of Ohio, and asks judgment for the price of certain goods sold and delivered to the defendant.

The action was brought in the First District Municipal Court. Upon the return day of the summons, the defendant made a motion to have, the case transferred to the Third District Municipal Court,' stating in his motion that he was a resident of the latter district.

No proof of that fact was given, and the motion was denied.

The refusal of the court to transfer the action, in the absence of any proof adduced as to the action having been brought in the wrong district, was correct. Section 1382, Consol. Act; Baer v. Kempner, 15 Daly, 110; Werner v. Braunstein, 20 Misc. Rep. 341. The defendant also demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. 'The court overruled such demurrer, and in that decision it was also right.

An examination of the record, however, discloses more serious questions. The summons m this action was returnable on the 24th day of January, 1899. On that day the parties appeared and the plaintiff then filed a verified complaint. The record then states “ Answer to be filed January 25, 1899, and the action was then adjourned until January 31, 1899.”

On January 26, 1899, the court rendered a judgment by default, without taking any proof,- in favor of the plaintiff, and against the defendant for the amount claimed in the complaint, the “ defendant having failed to file his answer as ordered.”

*200This, was error. Municipal Courts (formerly District Courts) have no jurisdiction not conferred by statute. Porter v. Cregan, 26 Misc. Rep. 417, and cases cited.

It has been held' that a defendant has a right to appear and interpose an answer upon terms at any. time before trial. Fogarty v. Kenny, 11 Wkly. Dig. 126.

Action on the part of the court below was suspended by the adjournment from January 24 to January 31, 1899, and the court could render no legal judgment in the interim. The verified complaint herein not having been served “ with the summons ” as provided by section 1383, Consolidation Act, which section, subdivision 2, is the same in substance as section 2891 of the Code of Civil Procedure, and is made'applicable by section 1347, Consolidation Act, to actions in Municipal Courts, the plaintiff cannot recover without proving his case. Howard v. Brown, 2 E. D. Smith, 247; Armstrong v. Smith, 44 Barb. 120.

Judgment must, therefore, be reversed.

MacLean and Leventritt, JJ., concur.-

Judgment reversed, new trial ordered, with costs to appellant to abide event.