#### Frank D. Koerkle, Appellant, *v.*James T. Pangborn, Respondent.

(Supreme Court, Appellate Term,

December, 1900.)

1. Municipal Court of the city of Hew York — Power to open a judgment -taken by default.

The Municipal Court of the city of New York has power under chapter 748 of the Laws of 1896 to open a judgment taken against a party by default.

Abrams v. Fine, 28 Mise. Hep. 533, not followed.

2. Same — Waiver of objection to jurisdiction.

Where the defendant appears in a district of the said Municipal Court, other than that in which the action was brought, and to which the issues of fact have been sent for trial, and there takes the plaintiff’s default, he waives objection to the jurisdiction and cannot assert it on the plaintiff’s appeal.

*477Appeal by the plaintiff from a judgment of dismissal, rendered upon his nonappearance by the Municipal Court of the city of Eew York, borough of Manhattan, and from an order of the same court denying a motion to open such default.

The material facts are stated in the opinion.

Wasserman & Jacobus, for appellant.

James Cochran (G. A. 0. Barnett, of counsel), for respondent.

Giegerich, J.

This appeal brings up for review the judgment of dismissal, as well as the order denying the motion to open the plaintiff’s default.

In passing upon the application the learned justice, in part, said: *"*There is no question but what the default was suffered unintentionally, and that plaintiff makes a case entitling him to relief, if the court has power to grant it. In fact, unless relief can be given, plaintiff may, by mere excusable inadvertence, be deprived of a meritorious suit, as the Statute of Limitations will be a bar to a new action. But in this court’s opinion, the decision of the Appellate Term in the case of Abrams v. Fine, 28 Misc. Rep. 533, is controlling on it, and denies power to a justice of the Municipal Court to set aside a dismissal entered on the default of the plaintiff, the reason being that by a dismissal the court loses jurisdiction of the person of the defendant, and cannot again confer upon itself jurisdiction against the consent of the defendant. Prior to this ■ decision it was the court’s opinion that it had the power to open such a default under section 1367 of the Consolidation Act, as amended by chapter 748 of the Laws of 1896.”

It is manifest from a reading of the opinion of the court in the case last cited that their attention was not directed to the statutory provisions above referred to, which are as follows: “ The court, or any justice holding the same, may at any time, upon motion made upon such notice as the justice may direct, open anj default, and set aside, vacate or modify any judgment entered thereon, and set the cause down for pleading, hearing or trial as the case may require upon such terms and conditions as the court or justice may deem proper * * * Sections seven hundred and twenty-three to seven hundred and twenty-eight, inclusive, of the code of civil procedure shall apply and relate to and gov-*478era. the said district courts. Said justice may award such costs, not exceeding ten dollars, as a condition for opening any such default, or vacating, modifying or setting aside any such judgment against any party to the action, as in his discretion shall be just and proper.”

■Section 724 of the Code of Civil Procedure, which, as noted, applies to these courts, in part provides: *“*The court may likewise, in its discretion, and upon such terms as justice requires, at any time within one year after notice thereof, relieve a party from a judgment, order or other proceeding, taken against him through his mistake, inadvertence, surprise or excusable neglect.”

The Municipal Court of the City of Hew York is a continuation of the District Courts (Worthington v. London G. & A. Co., 164 N. Y. 81), and the foregoing provisions confer upon such court, or the justices thereof ample power to relieve a party litigant plaintiff or defendant from a judgment taken against him by default. That the power so conferred could be exercised favorably to the application, of a plaintiff was distinctly recognized by the Appellate Term in Popkin v. Friedlander, 23 Misc. Rep. 475; Weinstein v. Flaxman, 23 id. 702, and Berg v. Pohl, 24 id. 740. Heither of these cases were mentioned by the court in Abrams v. Fine, *supra,*and it is evident that their attention was not called thereto.

The respondent urges, however, that even if such power does exist, it should not be exercised in the case at bar, because, as claimed, the justice lost jurisdiction in consequence of his failure to order a trial by jury within the time limited by section 1372 of the Consolidation Act after the final submission of the case, which, so far as applicable, prescribes that: “ If after a trial shall have been had before the justice without a jury, the justice shall within eight days after the submission of the case or proceeding, certify that the evidence is of such a conflicting nature that he has been unable to determine the issue of fact, and that he deems it proper that the same should be tried by jury, he may, by an order, set the same down for trial by a jury for a day not more than eight days from the time of the making of the order, and thereupon the action or proceeding shall be continued in court, and tried by jury as hereinbefore provided in the case where a trial by jury is ordered by the justice before the trial.”

The return shows that the cause was tried in the Municipal *479Court of the city of Mew York, borough of Manhattan, sixth district, on the twenty-third day of May, 1900; that it was finally submitted to 'the trial justice two days later, and that on the thirty-first day of the same month the justice made an indorsement upon the papers to the effect that he was unable to determine the issues of fact in the case, and that he deemed it proper that the same should be tried by a jury, and he accordingly set the case down for June 5, 1900, in the Seventh District Court.

It thus appears that the order was made within the time limited by law, and that the case was set down for trial by a jury within the prescribed period. Although the record discloses no reason for the transfer of the case to another district, the respondent is in no position to take advantage thereof, in view of his voluntary appearance in the District Court, to which the action was transferred, and there, without objecting to the jurisdiction of the court on the ground that the action was in the wrong district, talcing the plaintiff’s default and entering a judgment of dismissal thereon. Under these circumstances, the objection must be deemed to have been waived by the respondent. Dammann v. Peterson, *17*Misc. Rep. 369; Langbein’s Mun. Ct. Pr. (4th ed.) 408.

It results from these views that the judgment should be reversed, with costs to the appellant to abide the event, and a new trial ordered and the proceedings remitted to the Municipal Court of the city of Mew York, borough of Manhattan, sixth district, for further hearing to be brought on upon at least five days’ notice.

Beekman, P. J., and O'Gorman, J., concur.

Judgment reversed, with costs to appellant to abide event, and new trial ordered and proceedings remitted to Municipal Court for further hearing, to be brought upon at least five days’ notice. ■