#### B. Crystal & Son, Appellant, *v.*Eugene A. Ohmer, Respondent.

(Supreme Court, Appellate Term, First Department,

February, 1913.)

Pleading — Municipal Court of city of New York — proof of service of summons and complaint — answer pleading payment — evidence.

Where defendant in a Municipal Court action procured an order to show cause why a judgment entered on his default should not be vacated and set aside, upon a duly verified proposed answer pleading payment to the first cause of action alleged in the complaint, and a denial of the second cause of action, and submits an affidavit that the summons and complaint were never served on him, and makes an affidavit of merits, and on the return of the order to show cause the evidence is ample to support a finding that the summons and complaint had not been served on defendant, the jurisdictional defect is waived; and the dismissal of the complaint is reversible error.

The proper practice was to have vacated the judgment in plaintiff’s favor, permitted defendant to serve his proposed answer, and then to have set a date for the trial.

Appeal from a judgment of the Municipal Court of the city of Mew York, borough of Manhattan, first district, dismissing the complaint, and also from an order vacating a judgment rendered in favor of the plaintiff.

Jerome L. Adler, for appellant.

Gallert & Heilbom, for respondent.

Seabury, J.

The complaint alleges two causes of action. In the first cause of action, the plaintiff seeks to recover $115, alleged to be due as rent under a lease between the *228parties. In the second cause of action, the plaintiff seeks to recover $9.80, alleged to he due for work, labor and services performed at the request of the defendant. On September '25, 1912, a summons was duly issued and made returnable on October I, 1912. The affidavit of service recites that service of the summons and complaint was duly made on September 30, 1912. On October *1,*1912, the return day, judgment was entered in favor of the plaintiff for the amount claimed, upon the defendant’s default of appearance. On the 4th day of ¡November, 1912, the defendant procured an order to show cause directing the plaintiff or his attorney to show cause on November 8, 1912, “ why an order should not be made, entered and filed herein, permitting the defendant) Eugene A. Ohmer, to appear and answer herein, and why the judgment heretofore entered herein should not be vacated and set aside, and why the cause should not be set down for trial, "and why the defendant should not have such other and further relief as to this court may seem just and proper in the premises.” This order to show cause was procured upon a duly verified proposed answer, in which the defendant interposed a plea of payment to the first cause of action, and a denial of the second cause of action alleged. The defendant also submitted an affidavit in which he stated that the summons and complaint were not served upon him on September thirtieth, as set forth in the proof of service, or at any other time. The moving papers also contained an affidavit of merits and a recitation of facts tending to support the allegations of the proposed answer, and, at the end thereof, contained a prayer for relief, under which the defendant prayed that “ his default be opened, and that he be .permitted to appear and serve the amended answer.” On November 8, 1912, the return day of the order to show cause, the court below took proof to determine whether or not the defendant had been served with the summons and complaint, and, upon evidence ample to support his finding, determined that the summons and complaint had not been served. The record discloses that, after the trial of the so-called traverse, the judgment entered in favor of the plaintiff - was vacated, and the complaint -was dismissed. *229Under the facts above recited, the defendant waived the jurisdictional defect, and submitted himself to the jurisdiction of the court. He requested the court to regard his failure to appear as a default not caused by his 'own negligence, and prayed for leave to interpose a proposed answer duly verified and submitted to the court, and to be allowed to defend the action. As the defendant submitted to the jurisdiction of the court, the learned court below should not have dismissed the complaint, but should have vacated the judgment entered in favor of the plaintiff, permitted the defendant to interpose the proposed answer, and then have set a date for trial. Review & Record Co. v. Gilbreth, 65 Misc. Rep. 503; Goldstein v. Goldsmith, 28 id. 569.

The judgment dismissing the complaint is reversed, and a new trial ordered, with costs to abide the event. The order vacating the judgment entered in favor of the plaintiff and dismissing the complaint is modified by striking out the provision directing a dismissal of the complaint, and, as modified, affirmed, without costs. The defendant is granted leave to interpose the answer proposed.

Lehman and Page, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event, and order dismissing complaint modified, and, as modified, affirmed, without costs.