Opinion
January Term, 1898.
Albert Day, for the appellant.
Thomas F. Keating, for the respondent.
The action was to foreclose a mortgage made by the defendant, Margaret Hickey, and after judgment a motion was made at Special Term to set aside the judgment on the ground that there had been no personal service of the summons on said defendant. The court appointed a referee "to take testimony and ascertain whether the summons and complaint in the above-entitled action was served upon the defendant, Margaret Hickey, in the above-entitled action, on April 24, 1897, and report to the court with all convenient speed." There were several hearings before the referee, where Mrs. Dehong, the person employed to serve the process, and whose affidavit of service is annexed to the judgment roll, was examined and carefully cross-examined. Other witnesses were examined by the defendant to contradict and impeach her. The defendant's counsel was requested to call Mrs. Hickey as a witness, and declined to do so. The referee reported that the summons and complaint were served on Mrs. Hickey on the day named. The court made an order confirming the referee's report and denying the motion to vacate the judgment.
After carefully examining the evidence taken before the referee, we cannot do otherwise than affirm the order confirming the report of the referee and denying the motion to vacate the judgment. The failure of Mrs. Hickey to appear for examination before the referee, of itself would afford strong presumption against her contention that she was never personally served with the summons, but when this fact is coupled with a refusal of her counsel to produce her, the presumption ripens into an almost conclusive deduction that her contention is unfounded. Nor is this cured by the statement contained in Mrs. Hickey's affidavit used to oppose the motion for confirmation, in which she states that she went to Connecticut before the first hearing before the referee on account of ill-health and that her attorney did not know where she was until she informed him by a letter dated July twelfth and received by him on July thirteenth.
The referee's report was dated and filed July twenty-fourth, and there was an interval of nearly two weeks during which an application could have been made to the referee to open the hearing and take the defendant's testimony, but no such application was made. Under these conditions, the court and referee were justified in the finding that she was served with the process, and we agree with their conclusions.
The order should be affirmed, with ten dollars costs and disbursements.
All concurred.
Order affirmed, with ten dollars costs and disbursements.