The return of the constable, indorsed upon the summons, is to the effect that the same was personally served by him on the 9th day of August, 1855, by delivering a copy of the same to James B. Morris, president of the company) and Stephen Estes, clerk. The return was sufficient to give the justice jurisdiction of the defendant. (The New York and Erie Rail Road Co. v. Purdy, 18 Barb. 574.) The service of the summons on the defendant’s clerk was a nullity; (5 Mow. Pr. Rep. 183 ; 6 id. 308;) but the service of it on the defendant’s president was all the service that the code requires. (Code, § 134, sub. 1. 9 How. Pr. Rep. 448.) Such a service is expressly made applicable to summonses issued by justices of the peace. (Code, § 64, sub. 15.)
Jlfter the plaiptiff presented her complaint to the justice, *513the defendant’s attorney said he “appeared first preliminarily” for the purpose of objecting to the service of the process on James E. Morris, as he was not the president of the company. The defendant then called Stephen Estes, upon the point, who testified that Morris had parted with his stock in the company, and all of it, since he was elected president, and that there had been no president elected since January, 1855. The defendant then admitted the character in which the suit was brought to be correct, and put in an answer, in writing, to the complaint, and the cause was thereupon adjourned by consent of the parties, without any request being made by the defendant to the justice to dismiss the action by reason of the alleged irregular service of the summons upon Morris after he had ceased to be president of the company.
The defendant’s counsel now insists that the judgment in the action should be reversed, for the alleged irregularity in the service of the summons upon Morris, after he had sold his stock in the company. I am of the opinion the defendant waived the alleged irregularity, by answering the complaint, without asking for a dismissal of the action, after the facts had been proved, which counsel now claims authorized the judge to dismiss it. (Onderdonk v. Ranlett, 3 Hill, 323.) If the defendant intended to persist in the objection to the regularity of the service of the summons, its attorney should have asked the justice to rule upon the question, after he had proved the facts upon which the objection was based, and before he put in the answer. The justice could not dismiss the action before such proof was made; and he was not obliged to do it afterwards, if the objection was well founded, for the reason that he was not called upon so to decide. He had the right to infer that the point was waived, as the defendant’s attorney presented the answer to the complaint after the alleged irregularity was shown, and then consented to an adjournment of the cause to a future day, without requiring him to decide the question as to the regularity of the service *514of the summons, The proceedings of' the justice, touching this point, were therefore regular, and should he upheld.
On the adjourned day, after the parties had appeared and answered, the defendant’s attorney asked the justice to dismiss the action, on the ground that the process should have been served on each member of the corporation, instead of in the manner it was served ; also, on the ground that the justice had a brother who was a stockholder in the company that was the defendant in the action ; and the defendant’s attorney offered to show that fact; also, on the ground that the justice had not jurisdiction of the case. The justice overruled the objections, and refused to discontinue the action, and excluded the defendant’s offer.
The first ground of this motion to dismiss the action had been previously waived, as has already been shown. The other ground will now be considered. The statute by which the question must be determined, is in these words, to wit: ££Ho judge of any court can sit as such in any cause to which he is a party, or in which he is interested, or in which he would be excluded from being a juror, by reason of consanguinity or affinity to either of the parties.” (2 R. S. 275, § 2.) It was held in Edwards v. Russell, (21 Wend. 63,) that this statute applies to justices of the peace. In Foot v. Morgan, (1 Hill, 654,) it was held that a justice of the peace could not give judgment in a cause, if he was related to the party beneficially interested in the subject matter of the action. But there is no case holding that a justice of the peace, or a judge, cannot sit as such in a cause to which a corporation is a party, though he be related to a stockholder in such corporation. A single stockholder is not the party in interest on the part of the corporation. His interest is limited and remote, and not full and immediate. The statute is not comprehensive enough to prevent the brother of a stockholder in a corporation sitting as a justice or judge in a cause to which such corporation is a party. The decision in the Bank of Lansingburgh v. McKie, (7 How. Pr. Rep. 360,) is to this *515effect. And inasmuch as there is no common law rule that-disqualifies a justice of the peace or a judge from sitting as such in a cause, by reason of his relationship to a party or party in interest, the justice before whom this action was tried committed no error in giving judgment for the plaintiff, although he was a brother of a stockholder in the company that is the defendant; and he did right in rejecting the defendant’s offer to show such fact.
[Tioga General Term, May 12, 1857.Mason, Gray and Balcom, Justices.]
It becomes unnecessary to examine the point made by the plaintiff’s counsel, that the proof was properly rejected, because there was nothing in the answer of the defendant raising the question as to the jurisdiction of the justice.
The judgment of the county court should he affirmed.
Judgment of the county court and of the justice reversed, with costs.