This was an action pursuant to the Fair Labor Standards Act of 1938, as amended (U. S. Code, tit. 29, §§ 201-219) and plaintiffs were therefore required to serve a summons and formal pleading (N. Y. City Civil Ct. Rules, rule 5).
The failure to serve the complaint and summons was a jurisdictional defect (Baum v. Halperin, 169 N. Y. S. 489) not waived by the service of a notice of appearance. (See CCA, §§ 402, 902, 1001, 1002, and McKinney’s Cons. Laws of N. Y., Book 29A, Court Acts, Practice Commentaries thereto.)
The orders granting plaintiffs leave to serve a verified complaint, nunc pro tunc, and denying the cross motion to dismiss the action should be reversed.
The plaintiffs’ motions should be denied and the cross motion to dismiss the action granted, with $10 costs.
Concur — Streit, J. P., Markowitz and Gold, JJ.
Motions denied and cross motion granted, etc.