Warden v. Goldman

Page, J. This appeal was taken by the plaintiff from a judgment in his own behalf to procure a modification of the judgment by inserting therein the words “ defendant liable to arrest and imprisonment on execution,” The respondent did not appear upon this appeal. The verified complaint demands judgment for the sum of $653, with interest thereon. The summons also stated that in default of appearance and answer judgment would be taken for the aforesaid sum. The defendant appeared at the trial but offered no evidence, resting on his motion to dismiss the complaint for a failure of proof. The plaintiff then announced that he would take judgment for $500, which was granted. The action having been brought to recover more than $500, the Municipal Court did not have jurisdiction of the action. Mun. Ct. Act, § 1. Not having jurisdiction it could not render judgment for $500 on the consent of the plaintiff. Section 250 of the Municipal Court Act only allows the party whom the proof shows to be entitled to a larger judgment than he had demanded to remit the excess [89] amount and take judgment for $500. The jurisdiction of the court is determined by the amount for which judgment was demanded. Hamburger v. Hillman, 103 App. Div. 263. As the court did not have jurisdiction of the subject matter of the action the defect was not cured by the appearance of the defendant nor by his failure to raise the objection, for in such a case consent even does not confer jurisdiction. The judgment will, therefore, be reversed and the complaint dismissed, without costs. Bijtjr, J., concurs.