Scott, J.
It is claimed by the tenant-appellant that the petition was defective in that it failed to allege that the three days’ notice was served as required by law. It is true *630that, in the body of the petition there is an omission to allege that the marshal, at the time of service, 'showed the original notice to the officer of the tenant upon whom the service was made, but the petition in terms refers to and “makes part of the petition ” the original notice and proof of service, and that proof shows that the original notice was exhibited to the person served. This would seem to answer the oh- , j action, but even if' it did not, it is, in my opinion, too late to now take the point. The record shows that the tenant did not at any time make the objection in the court below, and in my opinion it must be deemed to have thereby submitted itself to the jurisdiction. Matter of Stuyvesant Real Estate Co., 40 Misc. Rep. 205. It is true that in the case above cited the court says that the question upon which the case was decided in this court “ as it involves a question of jurisdiction of the court below must be considered, although raised for the first time on appeal.” It appeared in that case, however, that the petition had been dismissed upon another objection made by the tenant. The appellate court found this particular objection untenable, but in passing upon the propriety of the order of dismissal found itself called upon to examine every question not expressly waived below. As the tenant had been successful below in his first objection he had neither reason nor opportunity to present any other, and, therefore, could not be held to have waived one that he otherwise might have raised. A summary proceeding does not differ in any essential particular from any other civil action or proceeding so far as concerns the jurisdiction of the court to entertain it. The general rule in all civil actions is that a party may stipulate away all his rights, questions of jurisdiction as well as others, and he may do this by express agreement, by acts inconsistent with the objection or by his silence and omission to present the proper points when he ought to object. Cowenhoven v. Ball, 118 N. Y. 231; Vose v. Cockcroft, 44 id. 415. Riot having,spoken when he ought he will not be permitted to speak when he will. Johnson v. Oppenheim, 55 N. Y. 291. As was' said in Cowenhoven v. Ball, supra: “ The distinction is clear between objections which are in the case and arise upon the *631evidence, and are involved in the controversy between the parties and those which are to the proceedings, and not connected with the matters in issue but are preliminary, and, go only to the rights and power of the court to hear the case. The former are meritorious and are available to the unsuccessful party on appeal, although they may not have been considered in the lower court. The latter are technical, and do not affect the merits and are deemed to have been waived if the party proceeds with the trial or argument of his case without raising them.” Applying this rule to the case at bar it seems quite clear that the jurisdictional defect upon which the appellant now relies was one which could be and was waived by the appearance and answer of the defendant, and its proceeding to trial and judgment without suggesting the defect in the service or in the allegations of the petition respecting it, The tenant appeared'on the return day and obtained time to plead; the answer contained no plea to the jurisdiction, and at the trial, although several objections to the jurisdiction were raised by motion to dismiss and were rightly overruled, the particular objection now urged was at no time suggested. If the tenant had desired to avail itself of the objection it should have been taken at the trial. If then overruled, the tenant, having saved the point by proper exception, might safely have proceeded with the trial. The objection would then have been available upon an appeal from the final order. The answer contained a general denial, and thus put the landlords to their proof, and here also they failed to show that the three days’ notice was served in the manner prescribed by statute, in that there was no evidence that the original notice was exhibited to the officer of defendant on whom service was attempted to be made. Here again, however, the tenant omitted to call attention to this defect in the proof, or to inclnde it among the reasons for dismissing the petition. We are bound to assume that, if attention had been called to the omission, it would have been supplied, since the marshal’s certificate attached to the petition and made a part thereof by reference, shows proper statutory service. It is too late for the tenant now to take advantage of the omission. In my opinion the payment of *632tlie taxes after appearance and the filing of the answer was wholly insufficient to defeat the landlords’ right to a final order, and evidence of such payment was inadmissible. Ho such issue was presented by the pleadings and the only issues to be tried are those raised by the petition and answer. Code Civ. Pro., § 2247. The landlords’ right to a final order is to be determined by the result of such a trial. There is no provision of law authorizing the court to refuse a final order under such circumstances, and it is only the final order which is appealed from and with which we now have to deal. Under section 2254, Code of Civil Procedure, the issue of a warrant may be stayed, after a final order is made, by paying the taxes due and the costs of the proceeding, but this provision relates only to the issue of the warrant and not to the granting of the final order. Doubtless the payment of the taxes before the granting of the final order, if supplemented by payment of the costs of the proceeding, may be availed of to stay the warrant, but not to prevent the adjudication in favor of the landlords upon the issue raised by the pleadings and the grant of a final order thereon. In the present case, however, the proceeding was based upon both the nonpayment of rent and the nonpayment of taxes. The nonpayment of rent was sufficiently proven, and that alone is enough to sustain the final order, which should be affirmed, with costs.
Final order affirmed, with costs.
Giegebich, L, concurs in result.