50 N.Y.S. 784 | N.Y. App. Div. | 1897
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.
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 adap
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.