Kutyn v. Cohen

116 N.Y.S. 636

Opinion

GILDERSLEEVE, P. J.

The defendant Cohen appeals from a judgment rendered against him upon the ground that the summons in the action was never served upon him. He presents affidavits in support of his appeal tending to show such to be the.fact. The justice’s return, however, shows that on the return day, the case being called, the defendant appeared by an attorney, who answered for him and interposed, without objecting to the jurisdiction of the court, an oral plea to the plaintiff’s oral complaint, a general denial, and the case was adjourned by consent for trial! We are bound by the return, and as it now stands the voluntary appearance of the defendant precludes him from questioning the validity of the judgment on the ground of want of jurisdiction in the court below.

Judgment affirmed, with costs. All concur.