
    George P. Kinney, Resp’t, v. Jacob Meyer, App’lt.
    
      (Supreme Court, General Term, First Department
    
    
      Filed June 6, 1890.)
    
    Service — Motion to sbt aside judgment for want of.
    Where the affidavits on motion to set aside a judgment in an action for tort, on the ground that the summons was not served, are numerous and conflicting, the court should order a reference to determine the truth of the alleged service, or open the judgment so far as to enable the defendant to appear and defend, retaining it, however, as security.
    Appeal from order denying motion to vacate a judgment.
    
      Stimson & Williams, for app’lt; H. T. Marston, for resp’t
   Brady, J.

The question presented for the consideration of the court below was one of fact, namely, was the summons served upon the defendant ?

The defendant denies it, and sustains his denial by evidence showing him to have been at his place of residence in Mew Jersey at the time the service is alleged to have been made in this city. These affiants number nine, including the defendant, to which is superadded affidavits of the defendant’s character as a good and reputable man by persons who have known him long and well; one being the president of a bank and another the surrogate of Essex county, M. J.

The plaintiff sustains his asseveration that the service was made by four persons whose depositions relate directly to the subject, and by others some of which relate to the good character of some of the affiants on his behalf who are assailed by contradictions. The number of depositions thus arrayed on both sides amounts to twenty-five and upwards, and on this mass of conflicting statements the learned judge in the court below was asked to determine the question suggested. He decided it in favor of the plaintiff, but as no opinion was delivered we have not the benefit of his views. He did not have the advantage of hearing the proofs and of seeing the witnesses, and neither party had the benefit of a cross-examination.

The action is for a wrong done and the damages were assessed by a sheriff’s jury on a default

It is thought on such a motion, marked by such extraordinary elements, one of two modes should have been adopted, namely, a reference to examine and report upon the truth of the alleged service, or the retention of the judgment as security, but opening it so far as to enable the defendant to appear and defend. This protects the plaintiff’s rights if he have any secured by the asserted service of the summons, and the defendant’s rights, whatever they may be, by giving him the opportunity to respond to the charge made against him.

For these reasons the order appealed from'should be modified by inserting in it the provision suggested, namely, opening the ■judgment so far as to enable the defendant to appear and defend, but allowing it to remain as security/without costs to either party.

Order accordingly.

Yan Brunt, P. J., and Daniels, J., concur.  