
    Stephen A. Dutton, Appellant, v. Lewis M. Smith and Others, Respondents.
    
      A judgment may be attacked collaterally by an action brought by a defendant not in fact served — evidence as to service.
    
    While a party may attack a judgment collaterally by showing, in a subsequent action brought by him in order to set aside the judgment, that he was never served with process in the former action, and is not confined to the remedy by a motion to vacate the judgment, made in the original action, yet where neither he himself, nor a physician alleged to have been attending him while sick at his home, at the time when the service was claimed to have been made upon him at his office, were called to testify upon the question of service, and the process server swore that he personally knew the person served by him to be the defendant in that action, the court was of opinion that the decision of the: trial justice that service was actually made, should not be reversed as against the weight of evidence.
    
      Appeal by the plaintiff, Stephen A. Dutton, from a judgment of the Supreme Court in favor of the defendants, entered in the ofBce of the clerk of the county of Kings on the 3d day of March, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      Henry Daily, Jr., for the appellant.
    
      Theodore B. Chancellor [Abraham Gruber with him on the brief], for the respondents.
   Goodrich, P. J.:

This action is brought to set aside a judgment entered in an action in the Supreme Court, on November 9,1893, in favor of the defendant Smith against the plaintiff, on the ground that there was fraud and collusion, and that the summons therein was never served on Dutton, and also to cancel the docket thereof and supplementary proceedings issued thereon, and to restrain the defendant Smith from collecting the judgment.

The answer denied the equities of the complaint, and set up that a motion had been made to set aside the judgment on grounds similar to those alleged in the complaint, and that the same had been denied, and that such denial was a bar to this action. The issues 9 ■ were first tried at Special Term, and resulted in a decision in favor of the defendant dismissing the complaint on the ground that the order referred to was a bar to, the action. On appeal to this court the judgment was reversed (10 App. Div. 566). In the opinion, Mr. Justice Cullen writing, it was held that the decision upon the motion did not bar the action, as it had not been shown to affect a substantial right, as, for example, in that' proceeding it appeared that testimony taken before a referee, to whom the matter was referred, was rejected merely on the ground that the witnesses giving such evidence had not signed the written minutes of the testimony ; that a party may attack a judgment collaterally, as plaintiff seeks to do in the present action, by showing that he was never, in fact, served with process; and that he is hot confined to-a motion to be made in the original action to vacate the judgment.

Upon the second trial now under review, a large amount of testimony was taken respecting the service of the summons on Dutton. Annexed to the judgment roll in the original action is an affidavit of one Van Buskirk, dated. October 19,-1893, in which he swears that on that day he personally served on Dutton “ at Number 111 Broadway; Boom 108, in the city of New York,” true copies of the summons and complaint, and that he personally knew the person thus served to be the defendant in that action. The plaintiff produced a large number of witnesses for the purpose of showing that Dutton had an office at No. Ill Broadway in the city of New York, and that he was not at such office on October nineteenth, but was at home, sick, under the care of a physician, and unable to leave the house; that on the day in question Simeon W. Dutton, a brother of the plaintiff, was at the office, 111 Broadway, and the process, in an envelope, addressed to S. W. Dutton, was handed to him by the process server. The defendants produced witnesses to contradict this testimony, and thus a fair question of fact was presented for the decision of the court. It is somewhat singular that neither the plaintiff himself, nor the physician who attended him, was produced as a witness, and that no reason was given for the omission; and such omission undoubtedly had great weight with the trial justice, .who stated in his decision: “I am satisfied that, in the action in which Lewis M. Smith was plaintiff and Stephen A. Dutton and John B; Stanchfield were defendants, mentioned in the complaint in this action, the summons was served upon Stephen A. Dutton, the-defendant therein ; and I so decide.”

It is only necessary to refer to the -well-established rule laid down in Aldridge v. Aldridge (120 N. Y. 614, 617), where it was said: An appellate tribunal is not warranted in reversing, upon the sole ground that, in its opinion, the trial court should have reached a different conclusion upon conflicting evidence. To justify a rever-, sal, it must appear that the findings were against the weight of evf- • dence, or that the proofs so clearly predominated in favor of a contrary result that it can be said with a reasonable degree of certainty that the trial court erred in its conclusion. (Baird v. Mayor, etc., 96 N. Y. 567.) It was said in that case by the chief judge, that ‘ when there is evidence on both sides and the case is balanced, and the mind of the court has been called upon to weigh conflicting statements and inferences and decide upon the credibility of opposing witnesses, much weight must be accorded to the especial adaptian of the trial court to investigate and determine such questions. That a proper regard for the advantages possessed by that court in the disposition of questions affecting the credibility of witnessés and those depending upon the weight and authority of conflicting evidence, requires a great consideration to be accorded to its opinion.’ ”

This authority is controlling upon our decision, and we may further add that a careful examination of the whole evidence, coupled with the significant fact of the failure to examine the persons named, brings us to the same conclusion as that arrived at by the learned court, that the summons was actually served on Stephen A. Dutton, as claimed by the defendant Smith; and the decision of this fact requires the affirmance of the judgment. There are several exceptions to the admission of testimony on cross-examination of plaintiff’s witnesses, hut we cannot discover that any injury resulted to the plaintiff therefrom, or that its admission affected the result of the decision,

The judgment must be affirmed.

All concurred.

Judgment affirmed, with costs.  