259 A.D. 1022 | N.Y. App. Div. | 1940
Defendant in an action for damages for injury to property appeals from an order denying his motion to confirm the report of an official referee, to vacate a judgment taken against him by default, and for other relief. Order reversed on the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The learned referee, who heard and saw the witnesses give their testimony, found and reported that the appellant had never been served with the summons, or with the summons and complaint. The order denying the motion is against the clear weight of the evidence, to be found in the facts adduced and in the inferences to be drawn therefrom. This is a case for the exercise of the court’s undoubted discretion, apart from the limitation prescribed in section 108 of the Civil Practice Act, to relieve from its order or judgment in the interest of justice and to avoid a miscarriage thereof. (Matter of Marsh, 242 App. Div. 290; Cimpritz v. Borden’s Farm Products Co., Inc., 240 id. 778.) Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ., concur.
