New York Common Pleas — General TermFeb 1, 1894
7 Misc. 122 (N.Y. Misc. 1894)
7 Misc. 12227 N.Y.S. 310

February, 1894.

Hoffman Hoffman, for respondent.

Fred Dieffenbach, Jr., for appellant.

Having appeared, answered and defended the action without objection, defendant is now precluded from urging that the court below did not acquire jurisdiction of him by service of the summons. Cushingham v. Phillips, 1 E.D. Smith, 417; Sperry v. Major, Id. 361; Andrews v. Thorp, Id. 615; Hogan v. Baker, 2 id. 22; Ingersoll v. Gillies, 3 id. 119; Miln v. Russell, Id. 303; Dempsey v. Paige, 4 id. 218.

Upon all the evidence adduced on the trial there appears but a fair conflict as to the manner in which the accident occurred, and as to the effect of the collision upon plaintiff's wagon and its contents; also as to the value of the necessary repairs. The determination of these questions of fact was properly for the justice below, and his findings that the accident was caused by defendant's carelessness, and without contributory negligence on plaintiff's part, and that the proper amount of damages was in the sum for which judgment was rendered, must be conclusive in view of the record submitted. Weiss v. Strauss, 39 N.Y. St. Repr. 78. Appellant does not rely upon exceptions taken to rulings on the trial, and an examination of them discloses no error.

Section 3068 of the Code of Civil Procedure, which provides for a new trial in the appellate court, applies to appeals from the Justices' Courts only. Section 3213 requires the new trial, if one is directed upon appeal from the District Court in the city of New York, to be had in the District Court.

The judgment should be affirmed, with costs.

GIEGERICH, J., concurs.

Judgment affirmed, with costs.