Citation Numbers: 95 Misc. 182, 159 N.Y.S. 243
Judges: Guy
Filed Date: 5/15/1916
Status: Precedential
Modified Date: 1/13/2023
The defendant herein, claiming never to have been served with a summons in this action,
This order was based upon an affidavit made by the defendant, to" the effect that he had never been served with the summons in this action and had no knowledge that a judgment had been taken against him until levy was made under the execution. The return day of the motion was set for March 8, 1916. On that day the plaintiff presented the affidavit of the process server who swore to the service upon the defendant on December 30, 1915. One of the plaintiffs made an affidavit in which he testified that during the first week of January, 1916, the defendant called at his place of business and ‘ ‘ told me that he was surprised to see that I had him served with a summons and complaint; that I know very well that he was good for the amount demanded in the complaint and asked that I give him time to pay the amount; ” that at that time defendant gave him several post dated checks for the amount due, all of which were paid except the last one for twenty-nine dollars which had been returned from the bank marked “ payment stopped; ” that after the return of this check, so indorsed, he instructed his attorney to proceed under the judgment. In this statement he was corroborated by the affidavit of his bookkeéper who testified she was present at the interview between the plaintiff and the defendant and heard what the defendant said.
The court thereupon denied the motion to vacate the judgment. It is recited in the order that the 11 motion made in open court that the testimony of the process server be taken and that said process server identify the man whom he served with the summons herein and that the testimony of the defendant herein be also taken as to such purported service be and the same is hereby denied.”
It will be seen that the court below may now determine the question of service of process “ by affidavit or otherwise ” which means- that the court may take oral testimony of the witnesses offered by either party or it may decide the question upon affidavits. In a case where the affidavits are conflicting and apparently of equal weight, an oral examination may be desirable and the best method to determine the question, and no doubt this court could in such, a case, upon appeal, order such a hearing to be had, if one was denied by the lower court, but the right to decide the matter upon affidavits is unquestionable, and there is no reason in this case for disturbing the decision.
Butte and Cohalax, JJ., concur.
Order affirmed, with ten dollars costs.