Opinion
April 14, 1924.
Jerome C. Jackson, for the appellant.
Charles Moise, for the respondent.
The appellant, upon an order to show cause, moved for the vacation of a judgment obtained by plaintiff over a year before. While in form the motion was to open defendant's default in answering, the affidavit shows that the motion is really to set aside the alleged service of the summons. The supporting affidavit alleges that the defendant, appellant, was in the country for a period from April, 1922, to November, 1922. In the affidavit of the process server, which is on file in the action, service is alleged to have been made on June 17, 1922, at West Fifty-second street, New York city. There are no answering affidavits. It does not appear, therefore, that defendant's proof is overcome, and the denial of the motion was error.
Order reversed, with ten dollars costs, motion granted, with ten dollars costs, and judgment vacated.
All concur; present, BIJUR, McCOOK and CRAIN, JJ.
Order reversed.