Nielsen v. Fleischner

246 A.D. 743 | N.Y. App. Div. | 1935

Order denying appellant’s motion to vacate judgment of foreclosure and sale on the ground that she was not served with the summons and complaint reversed on the law and the facts, with ten dollars costs and disbursements, and matter remitted to the Special Term for the taking of oral testimony on the question of service, and for a determination thereof upon all the evidence that may be adduced. In our opinion, the sharply disputed question of service should not have been decided by the Special Term upon affidavits alone. Lazansky, P. J., Carswell, Tompkins, Davis and Johnston, JJ., concur.