Holbrook v. Baker , 23 N.Y. Sup. Ct. 176 ( 1878 )

GILBERT, J.:

If the complaint in this case does not show that the County Court had jurisdiction of the person of the defendant, it contains nothing showing that such court had not jurisdiction thereof. The complaint was dismissed on the latter ground. That was error. In the case of Judge v. Hall (5 Lans., 69), this point was, we think, erroneously decided. The Code of Civil Procedure (§ 498) authorizes sucb an objection to be taken by answer. If not so taken, it is waived, for when tbe court has jurisdiction of the subject-matter an appearance will confer jurisdiction of the person. (McCormick v. Penn. Cent. R. R., 49 N. Y., 303.) We are inclined to hold that the complaint shows on its face that the court had jurisdiction of the person of the defendant; but it is not necessary to determine that point.

The judgment must be reversed, with costs.

Barnard, P. «J., and DyicmaN, «JJ., concurred.

Judgment reversed and now trial granted, costs to abide event.