#### The Roberts & Lewis Company, Appellant, *v.*Charles A. Dale, Respondent. The Roberts *&*Lewis Company, Appellant, *v.*Otto A. Frei, Respondent. The Roberts & Lewis Company, Appellant, *v.*Fergus M. Callan, Respondent. The Roberts & Lewis Company, Appellant, *v.*William Canfield, Respondent.

(Supreme Court, Appellate Term,

December, 1911.)

Courts — Decision and rules of decision — Effect as precedents— Interpretation. ■

Municipal courts — Procedure: Process — Ifonservice — Time for objection: Relief from default: Vacation of judgment.

The opinion of an appellate court must be interpreted as a whole, and its language must be tested by reference to the actual question before the court.

The authority of the Municipal Court of the city of Hew York being limited under section 253 of the Municipal Court Act to the opening of a default or a dismissal of the action, it may not vacate a judgment taken by default without setting the case down for pleading, hearing or trial, as it may require.

The Municipal Court Act permits a defendant to raise an objection to jurisdiction over his person only at the trial, or, if he fails to appear, by an appeal to the Appellate Term under section 311 of said act; and the Municipal Court of the city of Hew York is without power to rule on such an objection except upon the trial of the action.

After the recovery of judgment by default in a Municipal Court action defendants appeared specially and moved to set aside the judgment and dismiss the complaint upon the ground that the summons had never been served. The default was opened and the cause set for traverse, and on the return day defendants traversed the service of the process. The trial justice sustained the traverse, vacated the previous judgment and dismissed the complaint. Held, that the procedure was correct and authorized by the Municipal Court Act.

*'*Appeal by the plaintiff from four orders of the Municipal Court of the city of Dew York, borough of Manhattan, first district.

*391Philip Goldfarb, for appellant.

Silas B. Axtell, for respondents.

Lehmabt, J.

The plaintiff in these actions recovered judgment against the defendants on their default. Thereafter the defendants appeared specially and moved to set aside the judgments and to dismiss the complaints on the ground that they were never served with process. The trial justice ordered that “ the default be opened and case set for April 24, 1911, for traverse.” Upon the return day the defendants traversed the service. Thereafter a trial of the traverse was held, and the trial justice sustained the traverse and ordered that the previous judgments be vacated .and gave judgments for defendants dismissing the complaints. The plaintiff now seeks to review these rulings of the trial justice by appeal from his orders and urges that, under the authority of Friedberger v. Stulpnagel, 59 Misc. Rep. 498, and Review & Record Co. v. Gilbreth, 65 id. 503, wg are bound to hold that the rulings of the trial justice were erroneous. If he is correct in his contention, then we have no right to consider his appeal; for, in the case of Friedberger v. Stulpnagel, this court decided that, since the right of this court to hear appeals from the orders of the Municipal Court is-limited to the orders enumerated in certain sections of the Municipal Court Act, we have no right to reverse 'an order made upon a motion which the trial justice had no authority under those sections to consider.

I do not agree, however, with the view that the authorities cited by the plaintiff apply to the facts before us. .It is true that isolated expressions in the opinion in the case df Friedberger v. Stulpnagel are quite possibly open to the construction claimed by the appellant. However, “ The opinion must be interpreted as a whole and whatever was said must be tested by reference to the .actual question before the court.” Hogan v. Board of Education, 200 N. Y. 370. In the case of Friedberger v. Stulpnagel, the defendant appeared specially and moved to set aside the proceedings “ on the ground that the copy summons served did not conform to the original *392summons and is defective in that no place where the same is returnable is stated in said copy summons.” This court held in that case that the Municipal Court had no authority, under section 253 of the Municipal Court Act, to consider the defendant’s motion; that, under the provisions of that section, it could only open a default and set aside a final order if it at th'e same time set the action down for pleading, hearing or trial as the case may require ; that the plaintiff, having appeared specially and only for the purpose of moving to vacate" and set aside the judgment, had not submitted herself to the jurisdiction of the court and that, without a voluntary submission, the court could not regard the defendants as in “ default ” within the meaning of the statute, nor could it set the action down for pleading, hearing or trial.” I have no doubt but that the construction, which the court gave to the statute in that case was correct. The authority of the court under section 253 is limited to the opening of a default or dismissal. It has no authority to vacate the judgment withgut setting the case down for pleading, hearing or trial as the case may require. In that case, the defendant sought to have the judgment vacated without a trial on the ground that the summons served upon her was defective on its face. The judgment had been entered upon *prima fn-cAe*proof of jurisdiction. The defendant could have objected at the trial to the. jurisdiction of the court; and, if it had appeared from the evidence that the court had not jurisdiction, judgment should have been rendered dismissing the action without prejudice to a new action. Section 248 of the Municipal Court Act. That section, however, further provides: “ But if the objection be taken and overruled, it is cause only of reversal on appeal, and does not otherwise invalidate the judgment; if not taken at the trial it is waived, and the court will be deemed to have jurisdiction.” In other' words, the Municipal Court Act permits a party to raise an objection to the jurisdiction of the court of the person only at the trial or, if he fails to appear, by appeal to this court under section 311; but the Municipal Court has no power to rule upon an objection to its jurisdiction except upon the trial. Where the defendant tries to raise the objection, except upon *393the trial, and . appears specially to raise the objection by motion, the Municipal Court is absolutely without power to pass upon the objection. This court so held in the cases cited by the appellant; and I feel that these authorities must still be followed by this court, in spite of the fact that there are isolated expressions of opinion in the recent case of Blackman v. Iron Clad Manufacturing Co., 137 App. Div. 832 to the contrary.

Where, however, a defendant, though appearing specially in order to preserve his rights to object to the jurisdiction of the court, seeks a trial where this objection can be properly raised, I believe that the court may properly open the “ default *”*and set the case for traverse to the jurisdiction of the court and then may try the issues raised by this traverse. Even a special appearance for this purpose gives the court a* limited jurisdiction of the person of the defendant; for,- 'after he has raised the objection, if the objection is overruled, he cannot attack the judgment collaterally but is limited to an appeal. In this case, while the defendants appeared specially to set aside the judgment and did not, as they should have done, ask to have the case set down for a traverse, they did in fact submit themselves to the jurisdiction of the court for the purpose of having the case set down for traverse; they appeared at the trial so set, and then raised the objection to the jurisdiction of the court; the court sustained the traverse and dismissed the complaint. This procedure was, in my opinion, correct and .authorized by the statute. It is in accordance with the practice approved by the Appellate Division of the Second Department in the case of Blackman v. Iron Clad Manufacturing Co. *supra,*and it is .not contrary to the decisions or opinions of this court relied upon by the plaintiff on this appeal.

The orders should be affirmed, with costs.

Giegebioh and Pehdletow, JJ., concur.

Orders affirmed, with costs.