#### John S. Sills et al., Respondents, *v.*Daniel Gaffney, Appellant.

(Supreme Court, Appellate Term,

May, 1905.)

Municipal Court — Summons — Substituted service — Failure to file order and papers — Appeal — From judgment — Court may review all proceedings on which judgment is based.

Under section 34 of the Municipal Court Act of the city of Kew York, failure to file an order for the substituted service of a summons not less than six days before the return day of the summons is fatal to the jurisdiction of the court.

Although an order denying defendant’s motion to vacate the order for substituted service is not appealable, yet, if an appeal is also taken from the judgment and from an order denying defendant’s motion to vacate the judgment, the court may review all the proceedings upon which the judgment is based.

Appeal by defendant from a judgment entered in the Municipal Court of the city of Mew York, third district, borough of Manhattan, from an order denying defendant’s motion to vacate and set aside an order directing substituted service of the summons herein and from the order denying the defendant’s motion to vacate and set aside the said judgment.

Dittenhoefer, Gerber & James (David Gerber and John B. Knox, of counsel), for appellant.

Edwin Louis Garvin (William A. Young, of counsel), for respondents.

Greenbaum, J.

The fact seems to be undisputed that the order for substituted service of the summons upon the defendant and the papers upon which it was granted were not 'filed until the 9th day of January, 1905, the day before the return day (tenth) of the summons.

The language of section 34 of the Municipal Court Act *367is that: “ The order, and the papers upon which it (referring to an order for substituted service) was granted, must be filed, and the service must be made, not less than six days before the return day of the summons; otherwise the order becomes inoperative.”

The clear and unmistakable meaning of this provision is that a failure to strictly comply with its terms respecting filing of the order and papers therein mentioned is fatal to the maintenance of the action and to the jurisdiction of the court. Behm v. Damon, 91 N. Y. Supp. 733.

It is unnecessary to consider at length the other grounds for reversal urged by the appellant. It will be sufficient to meet the point of the respondents as to the nonapplicability of the judgment and orders herein, by stating that it is doubtless correct that an appeal merely from an order denying defendant’s motion to vacate and set aside the order directing substituted service will not lie, but the appeals in this case are also from the judgment and the order denying defendant’s motion to vacate and set aside the judgment.

The judgment was not one entered by default. The defendant was not obliged to interpose a verified or, for that matter, an unverified answer, since the court had no jurisdiction in the action and a judgment entered under such circumstances was a nullity and is not to be treated as by default.

The appeal from the judgment enables the court to review-all the proceedings upon which the judgment is based.

The appeals from the order will be dismissed, and the judgment will be reversed with costs.

Scott and Leveittkitt, JJ., concur.

Appeals from order dismissed and judgment reversed, with costs.