Opinion
March 7, 1967
Order entered October 19, 1966, granting motion by defendant to vacate service of summons and complaint, unanimously reversed, on the law and the facts, and in the exercise of discretion, without costs or disbursements, and the matter remanded for a hearing to determine whether service on defendant was effected. Appeal from order entered on November 22, 1966, denying reargument dismissed, without costs or disbursements. On the present record, which, it is noted, does not include an affidavit by defendant himself, determination of the issue in dispute is necessarily inconclusive. In our opinion a satisfactory resolution requires the taking of testimony. Settle order on notice.
Concur — Botein, P.J., Stevens, Capozzoli, Rabin and McNally, JJ.