
    Nathan A. Kommel and Another, Respondents, v. Emanuel Bisgyer, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1916.)
    Affidavits — conflicting — evidence — service of summons or process — appeal
    Under section 129(1) of the Municipal Court Code which provides that “Upon proof by affidavit or otherwise that a judgment has been taken or a final order made without service of summons or process the judgment or final order must be vacated and set aside by the court in the district where it was entered,” the court in determining the question of service may take the testimony of witnesses offered by either party or it may decide the question upon affidavits.
    Where the affidavits are conflicting and apparently of equal weight, the Appellate Term, on appeal from an order denying a motion to vacate a judgment taken by default, may order an oral examination if one was denied by the lower court, but the right to decide the matter upon affidavits is unquestionable.
    Appeal by the defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, seventh district, denying a motion to vacate a judgment and for the trial of an issue raised by affidavits.
    E. Jacob Bisgyer, for appellant.
    . Julius Fischer, for respondents.
   Guy, J.

The defendant herein, claiming never to have been served with a summons in this action, obtained an order to show cause why the judgment taken upon default should not be vacated.

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.”

The appellant asks for a reversal upon the ground that the court below erred in denying this motion and in refusing to permit a hearing upon the issue of service. Under the former Municipal Court Act, the only way of determining whether or not a defendant had been served with a summons was by a trial of the issue raised by a traverse of the return, and it could not be determined upon a motion alone, and that is the tenor of .all the cases cited by the appellant in this case. That practice, however, has been changed by the Municipal Court Code. Section 129, subdivision 1, provides that “ Upon proof by affidavit or otherwise that a judgment has been taken or a final order made without service of summons or process, the' judgment or final order must be vacated and set aside by the court in the district where it was entered.”

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.  