
    HEROLD v. McBEAN.
    (Supreme Court, Special Term, Monroe County.
    March, 1898.)
    Appearance—Notice op Retainer—Service.
    Under Code Civ. Proc. § 421, providing that defendant’s appearance shall' be made within 20 days by service of an answer, demurrer, or notice of appearance, a notice of appearance not served in time may be returned.
    Motion for defendant to vacate a judgment by default. Referred to have proofs of service taken.
    Geo. W. Hart, for plaintiff.
    Hurry & Dutton, for defendant.
   WERNER, J.

Upon the hearing of the motion I was of the opinion that the summons had been duly served upon the defendant. I am-still of that opinion, but, in view of the fact that the alleged failure-of service seems to be the only ground for this motion, it seems proper-to adopt the suggestion made by plaintiff’s counsel to order a reference upon this question. Upon the argument of the motion I was also of the opinion that the refusal by plaintiff’s attorney to accept the notice of appearance served by the original defendant’s attorneys was an error of practice, but, after referring to section 421, CodeGiv. Proc., I am convinced that plaintiff’s attorney was right in returning the notice of appearance if it was not in fact served within 20' days after the alleged service of the summons. If the notice of appearanee was not properly served, and if the defendant’s attorneys were not entitled thereunder to notice of the assessment of damages, then judgment seems to be entirely regular, assuming the summons to have been properly served. This, therefore, is the vital question in the case. It is hereby referred to Miles Rosenblueth, an attorney and counselor at law of this court, to take the proofs of the respective parties upon the question whether the summons herein was served upon the defendant, and report the same to this court, together with his opinion thereon, with all convenient speed.  