¶1The constable’s return before the justice at the time he entered judgment showed proper service of the summons. He, therefore, had complete jurisdiction of the case. If any mistake was made, it was not with reference to the jurisdiction of the court to hear the case and enter judgment, but in the entry of judgment upon the complaint under sections 2936 and 2988 of the Code of Civil Procedure, without evidence. The error of the justice, if any, was in assuming that a return of personal service of the summons carried with it the conclusion that the complaint, which by section 2936 was required to be attached to it, and which was attached to it, was also served, or more probably in his failure to observe the form of the return.
¶2If a copy of the complaint was not served, the justice entered an erroneous judgment; if served the judgment is safe. On the return day the summons and complaint were *505before the justice. The defendant appeared specially and raised the objection that the complaint was returnable on a Saturday half-holiday. Having raised that objection only, and knowing that a verified complaint was issued with and attached to the summons, there is good ground for holding that he must be limited thereafter to the objection which he raised. But it is unnecessary to consider that question.
¶3As we have seen, the only error, if one existed, was in entering judgment without the proof of the claim. But the judgment was justified by sections 2936 and 2988, referred to, if the complaint attached to the summons was served with the summons. As matter of fact it was so served. The question here is purely technical and arises solely from the form of the return of the constable. After the decision of the justice the constable filed an affidavit with him, showing proper service of the summons and complaint, and the justice, having made his return, made an amended or supplemental return transmitting to the County Court in which the appeal was pending the affidavit showing that the defendant had no grievance, as in fact the complaint had been served. A reversal of a just judgment for such an alleged technical error is a sacrifice of substance to form and in violation of the spirit of section 1317 of the Code of Civil Procedure which requires the appellate court to render judgment according to the real justice of the case, without regard to technical errors or defects which do not affect the substantial rights of the parties. (Donnelly v. McArdle, 152 App. Div. 805.) The summons and complaint were required to be attached and it is assumed the justice performed his duty. The constable is also presumed to have done his duty in serving the paper which contained the summons and complaint. The defendant’s attorney was present before the justice and evidently knew of the service of the summons and complaint. The affidavit of the constable, produced in the Comity Court, shows that proper service was made, ■ and that fact is not denied. The County Court, with knowledge of all these facts, could not reverse the judgment upon the theory that the complaint had not been served. The papers before it showed to the. contrary. An appellate court, in the interest of justice and in order to sustain a just judgment, will receive in evidence *506for the first tune a certificate or document for the purpose of showing that all proceedings were regular, that an apparent defect does not exist and that justice has been done. It even has received oral evidence for that purpose when justice required. It will not enter upon the trial of a new and disputed issue but the fact to be proved to the appellate court must be of a nature which does not fairly, as the case then shows, admit of dispute. (People v. Flack, 216 N. Y. 123; Brooks v. Higby, 11 Hun, 235; Dunford v. Weaver, 84 N. Y. 445; Brown v. Epstein, 166 App. Div. 611, 613.)
¶4I concur with the county judge in the conclusion that section 2877 of the Code, read with section 24 of the General Construction Law, does not preclude the return of a summons upon a half-holiday. The statute recognizes a holiday and a half-holiday and the prohibition of the return of the summons is only as to a holiday. I favor an affirmance.
¶5Judgment of the County Court and Justice’s Court reversed, with costs.