
    Peter Burkhard, Respondent, v. Benjamin C. Smith, Appellant.
    (Supreme Court, Appellate Term,
    December, 1896.)
    Í. District Courts — Defaults.
    Section 1367 of the Consolidation Act, as amended by chapter 748 of the Laws of 1896,- gives the justices of the District Courts power to open defaults on proper motion and also to grant new trials in cases where there has been an appearance by the defendant and an actual trial of the issues, but this enactment, so far as the power to open defaults was thus given, does not override or repeal by implication the provisions of .the 'Code authorizing appeals to the -Appellate Division of the Supreme Court upon judgments rendered upon default, where the appeal is taken for error of fact, as that term is understood.
    2. Same — Service of summons.
    Where, from the affidavit of the defendant, his son and his attorney, it appears that the summons was never served upon the defendant, but left at his place of .business during his absence, and against this "is the customary unsworn indorsement of the marshal of the District Court that the summons had been personally served iipon defendant, the presumption of regularity is rebutted by the defendant, and in the absence of an- affidavit by the marshal a retrial of the cause should be granted.
    Appeal from judgment rendered by the justice of the Second Judicial District Court upon default of appearance by the defendant, who assigns error of fact in that the summons had not been served, upon him.
    Samuel S. .Watters, for appellant.
    Herman S. Butler, for respondent.
   Bischoff, J.

The' right of appeal for error of fact as to matters not .brought before the justice at the trial, such as the failure of service of the summons where the defendant had not appeared, was accorded to a defendant in an action brought in one of the District Courts by section 1438 of the Consolidation Act (chapter 410, La^ws of 1882) (Jennings v. Miller, 10 Misc. Rep. 762), the appeal being addressed to the Court of Common Pleas, prior to January 1, 189-6.

By section 3213 of the Code of Civil Procedure, as amended to take effect January 1, 1896, this right of appeal was continued, the hearing to be by the Supreme Court, and so, through "the designation of the Appellate Division, by this Appellate Term.

Section 1367 of the Consolidation Act (amended by chap; 748 of the Laws of 1.896) gives the justices of the District Courts power to open defaults, on proper motion, and also to grant new trials in cases where there has been an appearance by the defendant and an actual trial of the issues, but this enactment, so far as the power to open defaults was thus given, does not override or repeal by implication the provisions of the Code authorizing appeals to this court from judgments rendered upon default, where" the appeal is taken for error of fact, as that term is understood.

As to defaults, these justices possessed the same power "by virtue of ehapter'750 of the Laws of 1894 (amending § 1367 of the Consolidation Act) as is given by the latter amendment under the Laws of 1896, which last enactment simply gives added power over judgments rendered after a-trial, a power not included among those accorded by the amendment of 1.894. Zimmermann v. Bloch, 12 Misc. Rep. 158.

That the legislature, when giving jurisdiction to these justices to open judgments by default, intended to make, this remedy exclu-. sive of appeals from such judgments, could not. be held unless the intention clearly appeared, since repeals by implication are not to be favored (23 Am. & Eng. Ency. of Law, "489-491, and cases cited), and here the intention appears to have been to the contrary, for the right of appeal was given-, or continued, by the Code as amended in 1895, while the statute giving the justices this power over defaults was in force, and the enactment in 1896 made that particular power no greater nor more exclusive, it merely continued it. '

The appeal, therefore, may be entertained, and as we view it, successfully to the appellant. ■

From the affidavits submitted, those of the defendant, his son and his attorney, it appears that the summons was- never served upon the defendant, but, according to the two first named affidavits, was left at his place of business during his absence, on account of sickness; further it is shown that he had no knowledge of the action until after execution had been issued.

Against this we have the customary unsworn indorsement by the marshal upon the summons that it had been personally served on the defendant, but while there attached to this a presumption of regularity, such presumption was rebutted by the defendant, and in the absence of an affidavit by the marshal, who certainly had peculiar knowledge of the matter, to the contrary of these averments, we are satisfied that there should be a retrial of the cause. Waring v. McKinley, 62 Barb. 612; Carroll v. Goslin, 2 E. D. Smith, 376.

The affidavits submitted by the plaintiff do not attempt to show personal knowledge that the summons had been served upon the defendant, but merely allege an attempt by the defendant’s son to settle the claim, after the date of the summons and before the return day, and aver a statement made by the son that he knew it (the summons) had been served, in which last allegation the plaintiff is not supported by his corroborating witness, who states the son’s representation to have been as to knowledge that a suit had been brought. We do not think that the fact of service upon the defendant, or of his knowledge of the attempt of service were sufficiently shown by these affidavits to overcome the defendant’s proof of failure of service and absence of knowledge. Therefore, in the interests of substantial justice, he should have an opportunity to make his defense against the plaintiff’s demand. Judgment revérsed, with costs to the appellant.

Daly, P. J., and MoAdam, J., concur.

Judgment reversed, with costs.  