
    Frieda Szerlip, Appellant, v. Franz Baier et al., Respondents.
    (Supreme Court, Appellate Term,
    September, 1897.)
    1. District Courts of New York city — Power to open a default where the summons has not been served.
    Under chapter 748 of the Laws of 1896, amending the Consolidation Act (chap. 410, Laws of 1882, § 1367, as amended by chap. 750, Laws of 1894), a District Court of the city of New York has power to open, upon motion, any default, including a motion to set aside a judgment, made upon the ground that the summons had never been served, and this notwithstanding the fact that the remedy by an appeal is also available.
    . 2. Same — Cannot render a judgment for fees of referee.
    A justice of a District Court has no power, however, upon granting such a motion, to order a judgment in favor of the defendant for the • fees of a referee before whom the parties were directed by the justice to appear for an examination upon the disputed question of fact as to whether the summons had been served; and the consent of the parties that the unsuccessful one should pay the referee’s fees, confers no jurisdiction in the matter upon the District Court.
    3. Summons — Proof of service.
    Where a person testifies that he served a summons, his testimony is of greater weight than is the recollection of disinterested persons who state that they stood by and saw no service made.
    Appeal by the plaintiff from, an order of the justice of the Fifth District Court, vacating a judgment which had been entered by default in plaintiff’s favor, and awarding judgment against her, and in favor of defendant,. Franz Baier, for $30 fees of the referee before whom the witnesses were examined, and their deposition taken for use upon the defendants’ motion to vacate; the judgment. The motion to vacate was upon the ground that the summons had never been served upon the moving party..
    Abraham B. Schleimer, for appellant.
    A. H. Berrick, for respondents.
   Daly, P. J.

A judgment was rendered in this action against the defendant in the District Court for want of appearance and answer, on proof of personal service of the summons. • He. moved, before the justice, to set aside the judgment upon the ground -that the summons had never been served, and the motion was ■granted. From the order granting the motion, this appeal is taken. The respondent questions the jurisdiction of the court to entertain -the appeal, upon the ground that the statute, under which the justice assumed to act, confers no power to open a judgment by default, except in cases where jurisdiction of the defendant had been actually acquired by the. service of the summons upon him, .and that, as in this case, it was determined by the justice that the defendant had never been served, there had been no default, .and all the proceedings in the court below, including the order ■setting aside the judgment, were void.

Without considering how far the defendant is estopped from -denying the jurisdiction which he has successfully. invoked for his own benefit, and to the damage of the plaintiff, it .is enough to -.say that his contention that the justice had no power to set aside this judgment for want of service is entirely unfounded. The judgment was, in form, a judgment by default, and, until set aside, was on its face entirely regular as. a judgment by default, .and, therefore, within the statute which permits a justice to entertain a motion to set it aside. Before the statute, the remedy of .a defendant in such a case, was by appeal; and upon such appeal he might show that the summons had not been served; and the judgment would be reversed, if, for that reason, it was found that the justice had not acquired jurisdiction. Fitch v. Devlin, 15 Barb. 47.

. The statute was passed in order to afford a summary remedy, in addition, to the cumbersome; dilatory and expensive resort to an appeal. That the resort to an appeal is still open to the defendant in such a case (Code of Civ. Proc., §§ 3046, 3057, 3213), is no argument against the intention to afford a remedy by motion. We held to that effect in a similar case (Burkhard v. Smith, 19 Misc. Rep. 31), and so there is no force in respondent’s -objection that cumulative remedies could not have been intended by-the; legislature. Nothing in the act conferring the power upon the District Courts to open defaults on motion restricts that power to cases, in which the defendant has been regularly brought -"into court. The statute provides that the court ■ may open the default, and the action may be set down for pleading, hearing or trial, as the case may require.” This does not conclusively show that the legislature intended that the motion should not be entertained, except in cases wherein, if granted, the order shall provide for pleading, hearing or trial. Such directions is. to be made, if the case requires; if not, as where defendant has not been brought before the court, the order will simply set aside the judgment. From every order opening a default and vacating the judgment thereon, the statute allows an appeal to this court (Laws 1896, chap. 748).

The plaintiff-appellant here contends that the justice exceeded his power in awarding, in the order, a judgment in favor of the defendant for $30, the fees of the referee before whom the parties were directed by the justice to appear with their witnesses for examination upon the disputed question of fact as to whether the summons had been served. Both plaintiff and defendant agreed to attend before the referee, and stipulated that the unsuccessful party was to pay his fees. This consent and stipulation did not, however, confer upon the justice any power to award a judgment. There is no power in the District Courts to appoint referees, and no stipulation for the fees of those officers confers the right to include the disbursement in any judgment. The consent of parties cannot confer jurisdiction in such a case. The stipulation to pay the expenses so incurred must be enforced, if at all, by action, the same as any other contract.

Rot- only was the reference unauthorized and the allowance of the expenses improper, but it is manifest that a judgment could not be rendered in favor of the defendant where the only order authorized by the statute upon the motion was one vacating the judgment entered in favor of the plaintiff. A judgment can only be entered after a trial of an action, and cannot be awarded upon a motion in the District Court.

So far as this appeal brings up for review the decision of the justice upon the question of fact involved in the motion, the return shows positive testimony as to the fact of service by the person deputized to serve the summons, and the facts are circumstantially narrated in his testimony. According to his statement, the service was made on the 26th of September. The defendant first admitted that a paper was served upon him in September, but, on another occasion, changed the date to October, but always insisted that that paper was not a summons, but an order to appear before a justice of the Supreme Court. Such an order was served upon him in ¡November, and was disregarded by him. It was an order requiring him to appear and be examined in supplementary proceedings .instituted upon this judgment after the return of an execution, of which he also had had notice; and it was not until a subsequent order was served upon him requiring him to show 'cause why ho should not be punished for his contempt in disobey-; ing the order for examination, that he tardily made his motion to: open the default in the District Court. This disposition to disregard legal process, except where extreme measures are threat-. ened, affords very strong presumption that.he may have actually, suffered a default in this ease, after .regular service of the summons upon him. His silence, when notified of the execution, and whén the supplemental order was served, was an admissiomthát the proceedings were regular; and it should require very strong evidence to destroy the effect of such a concession.

That evidence is not presented by his own testimony, and the testimony of other interested parties, his sons and their employees^, as against the positive oath of the person who went to the defendant. for the express purpose of serving the paper, and who swears ■ that he did serve it. The recollection of such a witness is moreyeliabl.e than that of even disinterested persons who state that •they stood by and saw no service made. Upon the record before Us, therefore, I am in favor of a reversal of this order, not . only for the irregular award of judgment against the plaintiff, but also upon the merits. '

McAdam and Bischoff, JJ., concur.

Order reversed, with costs.  