County Court, Bronx County, November, 1921. [Vol. 117.

the Civil Practice Act, upon the ground that it must appear upon the face of the complaint that he resides in the county in which the action is brought, will be denied, even though the complaint fails to allege that he is a resident of the county in which the action is brought.

MOTION for dismissal of complaint.

Mantinband & Krauss, for plaintiff.

Fred H. Rees, for defendant.

GIBBS, J. This is a motion for an order dismissing the complaint in this action under section 278 of the Civil Practice Act upon the ground that the court has not jurisdiction over the person of the defendant.

The action was commenced by the service of a summons and complaint. The defendant appeared by his attorney serving a notice of appearance demanding a copy of the complaint and all other papers in the action. His time to answer was extended by stipulation. Thereafter this motion was made for judgment dismissing the complaint.

The defendant contends that plaintiff has failed to allege that the defendant is a resident of the county of Bronx and that as a matter of fact he resides in Queens county. He urges that before this court can have jurisdiction over the person of the defendant it must appear upon the face of the complaint that he resides in Bronx county.

I do not agree with this contention. It is now well settled law that the County Court may acquire jurisdiction over the person of the defendant even though he be a non-resident of the county wherein the action is brought. Although jurisdiction of the subject matter of an action cannot be acquired by consent, jurisdiction over the person may be. Meyers v. American

Misc.] County Court, Bronx County, November, 1921.

Locomotive Co., 201 N. Y. 163; Levine v. Bordens Condensed Milk Co., 179 App. Div. 921; Klein v. Director General, etc., 180 N. Y. Supp. 618.

The case at bar resolves itself, therefore, to the proposition as to whether the defendant has brought himself within the jurisdiction of this court. I believe he has. Section 237 of the Civil Practice Act provides the manner in which the defendant's appearance must be made. It provides among other things that he must appear by serving a notice of appearance. In the case before me, defendant served what is commonly called a general notice of appearance. In other words he appears generally in the action. By so doing he waives his right to question the jurisdiction of the court over his person. Had he wished to reserve that right he should have appeared specially. Muslusky v. Lehigh Valley Coal Co., 225 N. Y. 584. In that case, Judge Pound writing for the court said at page 587: "When the summons has been served on a defendant who does not intend to submit himself to the jurisdiction of the court over his person, he may elect to remain out of court but he need not wait until the entry of judgment against him by default. He may appear specially. (Goldey v. Morning News, 156 U. S. 518; Reed v. Chilson, 142 N. Y. 152.) The special appearance is recognized only for the purpose of raising the question whether the court has obtained jurisdiction over the defendant personally or through his property. If the defendant serves a general notice of appearance, his right to assail the claim of jurisdiction over his person is waived. (Code Civ. Pro. sec. 421; Reed v. Chilson, supra.)" In the case of Hober v. Reikert, 162 N. Y. Supp. 328, it was held, that where the defendant appeared generally in an action any irregularity or lack of jurisdiction over his person was waived.

Appellate Term, First Department, November, 1921. [Vol. 117.

So in the case at bar, the defendant having appeared generally, this court acquired jurisdiction over his person even though he were a resident of another county.

The motion must, therefore, be denied with ten dollars costs.

Motion denied.

ADELIAD GIOVINI, Appellant, v. MORRIS ARLUCK, Respondent.

(Supreme Court, Appellate Term, First Department, October Term Filed November, 1921.)

Motions and orders renewal of motion to vacate default judgment limited to one year from date of entry of judgment New York City Municipal Court Code, §§ 119(2), 129.

The right given by section 119 (2) of the Municipal Court Code to renew a motion to vacate a default judgment is, by section 129 of said Code, limited to the period of one year from the date of the entry of judgment.

Where a motion to open a default judgment, made within a year after the date of its entry, was never decided, a motion to renew the undecided motion, made after the expiration of said year, does not vest the Municipal Court with jurisdiction to open the default and set aside the judgment.

APPEAL by plaintiff from three orders of the Municipal Court of the city of New York, borough of Manhattan, sixth district, vacating a judgment obtained by plaintiff upon defendant's default.

Thomas A. Aurelio, for appellant.

Phillips, Jaffe & Jaffe (Harold M. Phillips, of counsel), for respondent.

Misc.] Appellate Term, First Department, November, 1921.

GUY, J. Plaintiff appeals from three orders entered herein; the first a short form order dated June 17, 1921, opening defendant's default and vacating the judgment entered thereon on May 4, 1920; second, a long form order entered June 21, 1921, to the same effect; third, an order entered on June 28, 1921, denying plaintiff's motion to set aside the order of June 21, 1921, on the ground that the court had no jurisdiction to make said order.

Following the entry of the default judgment on May 4, 1920, defendant moved to open the default, the return day for the hearing of said motion being July 16, 1920. On said date the court not being in session, by consent of both parties the papers were delivered to the clerk to be submitted by him to the court when in session. No decision was rendered on said motion, and it will be noted that the order of June 21, 1921, recites: "And the said motion having never thereafter been decided, and it being uncertain whether the same was ever submitted by the clerk to the court; Ordered that the said motions to open the defendant's default herein, heretofore made returnable July 16, 1920, and February 10, 1921, be, and the same hereby are renewed and reheard; that the said motion to open the defendant's default herein be, and the same hereby is granted, and the judgment heretofore entered herein by default on May 4, 1920, be, and the same hereby is vacated and that upon compliance with the foregoing terms, this case be set down for trial on September 8, 1921."

The question immediately involved upon this appeal is whether the defendant having moved within a year after the entry of the default judgment to open said default, and the said motion having never been decided by the court to which it was submitted, defendant could, after the expiration of one year from

Appellate Term, First Department, November, 1921. [Vol. 117.

the entry of said judgment, renew the undecided motion and vest the court with jurisdiction to open the default and set aside the judgment. Section 129 of the Municipal Court Code provides: "A motion to open a default and to vacate and set aside a judgment entered thereon must be made with due diligence and upon good cause shown and in no event more than one year after entry of the judgment;

The contention of the defendant that having made the original motion returnable July 16, 1920, with due diligence, and the said motion having been submitted to the court and remaining undecided, he could renew the same and bring it up for argument after the expiration of one year, is without merit. The language of the statute is unequivocal, and in no event can the court entertain such a motion. The right of renewal given by the Municipal Court Code, section 119, subdivision 2, is limited by section 129 to the period of one year from the date of entry of judgment.

Order of June 28, 1921, denying plaintiff's motion to vacate the orders of June 17 and 21, 1921, reversed, with ten dollars costs, and motion granted, with ten dollars costs; and appeals from orders of June 17 and 21, 1921, dismissed.

BIJUR and WAGNER, JJ., concur.

Order reversed and motion granted, with costs.