52 Misc. 2d 903 | N.Y. App. Term. | 1966
Under the special facts and circumstances of this case, it was error to strike out the testimony of the process server as to his habit and custom in making substituted service (32 C. J. S., Evidence, § 581; Richardson, Evidence [9th ed.], § 190; Matter of Kellum, 52 N. Y. 517). The service of process was not contested until approximately five and a half years after entry of judgment, at a time when the process server no longer had any recollection of the incident, and the court had found on a prior occasion that defendant’s default was “ deliberate, wilful and intentional ” and that no good cause to vacate the judgment had been shown. In our opinion, this testimony was sufficient to remedy the defect in the affidavit of service and the motion should have been denied (Air Conditioning Training Corp. v. Pirrote, 270 App. Div. 391; Lehman v. Mariano, 285 App. Div. 824).
The order should be unanimously reversed, without costs, and motion to set aside service of summons and complaint and to vacate judgment denied.
Concur — Di Gtovanna, G-ulotta and Baker, JJ.
Order reversed, etc.
