Opinion
June, 1935.
Appeal from order directing plaintiffs' attorney to accept service of an answer which defendant Clifford claims was served in time, but which appellants claim was served after the time to serve the answer had expired. Order reversed on the law and the facts, with ten dollars costs and disbursements, and matter remitted to the Special Term for the purpose of taking testimony as to whether the summons and complaint were served on February 20, 1935, as claimed by appellants, or on March 2, 1935, as claimed by respondent, and making an order accordingly. The matter is not one that should be decided upon affidavits. Lazansky, P.J., Young, Hagarty, Carswell and Scudder, JJ., concur.