The plaintiff has demanded in its summons and complaint the sum of $2,001.79 with interest. The defendants voluntarily appeared and interposed an answer in which they alleged that. ‘ ‘ it appears on the face of the summons and of the complaint that the court has no jurisdiction of the subject of the action.” Inasmuch as the court was clearly without jurisdiction, the plaintiff moved for leave to discontinue without costs. The court permitted the discontinuance but decided that the plaintiff must pay taxable costs. Thereafter the costs were taxed at the sum of thirty-seven dollars and fifty cents and a judgment for that amount was entered. Under section 164 of the Municipal Court Code, subdivision 9, costs upon a discontinuance before trial are one-half of the amount which would be awarded after trial as provided in subdivision 7 of that section. Costs awarded under subdivision 7 after a trial where the defendant is successful are determined by the amount of the plaintiff’s demand in the summons. If the defendants had been successful at the trial and their costs were determined by the amount of the demand in the summons, the costs would have amounted to the sum of one *484hundred and ten dollars, and the defendants now claim that they are entitled to one-half of this amount instead of the sum of thirty-seven dollars and fifty cents. They therefore moved for a retaxation of the costs hut their motion was denied, apparently upon the ground that under subdivision 12 their costs could in no event amount to more than thirty-seven dollars and fifty cents. Under a strict construction that subdivision would be applicable only to ultimate costs allowed and is not to be applied to any case where the costs awarded under the earlier sections amount to less than seventy-five dollars. On the other hand, it seems to me that the legislative intent that'a plaintiff should be allowed to discontinue upon the payment of one-half the costs which would have been imposed upon an unsuccessful trial is so clear that it might well be argued that we should give the language of section 164 a construction broad enough to carry out the legislative intent under all circumstances. However, in my opinion, we need not determine that point now because in any event I believe that the amount of costs taxed is not authorized.
There is considerable authority in this state that where it appears upon the face of the summons that the court has no jurisdiction of the subject matter of the action the court has also no jurisdiction to award costs upon a dismissal. It is urged, however, that upon this appeal we have no right to consider this point because the plaintiff has not appealed from the judgment, and the only matter we have a right to consider is the amount of costs provided for in section 164, where costs may be imposed. That contention, however, seems to me unsound. It may well be that we have no right to reverse this judgment or to modify it in the plaintiff’s favor where the plaintiff has not appealed from it, but if defendants are *485not entitled to any costs and the Municipal Court has no power to award any costs, it is certainly beyond our power to modify a judgment of the Municipal Court by awarding even greater costs. In the case of Day v. Sun Insurance Office, 40 App. Div. 305, and Hempsted v. White Sewing Machine Co., 134 id. 575, the court held that courts have power to award costs “ where the question of the jurisdiction of the subject matter has been presented to them, * * * even when they decide that they have no jurisdiction of the action.” In those cases, however, the court was actually called upon to pass upon the question of whether it had jurisdiction of the subject matter, whereas in this case the defect concededly appears on the face of the summons and the plaintiff voluntarily moved for a discontinuance without presenting such question of jurisdiction for the court to pass upon. The summons was in itself an absolute nullity; the court never acquired jurisdiction of any action, and the defendants were not called upon to appear in the attempted action and no judgment could by any possibility have been entered against them. Their voluntary appearances could give the court no jurisdiction of the cause of action and the court was never called upon to pass upon any question. I do not think that under these circumstances the court had any jurisdiction even to the extent of giving costs, and I find no authority to the contrary. It may be urged that the defendants by their voluntary appearance waived the defect in the summons and that the court thereby acquired jurisdiction of their persons. Even if we assume that it is possible to waive a defect in a summons and to enter a voluntary appearance where the face of the summons discloses that the court is without jurisdiction, yet such a contention cannot hold the defendants. The summons itself is palpably void by *486reason of the excessive demand and the defendants could enter an appearance, if at all, only by disregarding the amount of the demand. The award of costs is, however, under the statute based exclusively upon the amount of the demand in the summons and where by reason of an excessive demand the summons is absolutely void and can confer no jurisdiction of person or subject matter there is no basis for any award of costs. It follows, I think, that the Municipal Court was without jurisdiction to enter the judgment and the appeal from the void judgment should, therefore, be dismissed with ten dollars costs to respondent.
Ordway, J., concurs.