Opinion
February 8, 1960
In an action to recover damages for injuries to person and property, the appeal is from an order denying a motion to vacate and set aside the service of the summons and complaint on appellant on the ground that he had not been served personally. Order affirmed, with $10 costs and disbursements. Appellant, if so advised, may serve and file his answer within 10 days after the entry of the order hereon. There was testimony by the process server, received without objection, that he served one of the two defendants, and that the one whom he served had stated that the other was on Fire Island. Paul M. Kelly testified that he was the defendant who was on Fire Island. Concededly, the summons and complaint were forwarded to the insurance carrier, but there is no explanation in the record as to how they got there. Under the circumstances, and in the absence of such explanation, the Official Referee to whom the matter was referred by consent for hearing and determination, was justified in his conclusion that appellant had been served. The Referee was not obliged to credit the testimony of appellant and his witnesses. The Referee had the opportunity to see and hear the witnesses and to observe them on the stand, and his decision should be given the greatest weight. (Cf. Amend v. Hurley, 293 N.Y. 587, 594.) Nolan, P.J., Beldock, Christ, Pette and Brennan, JJ., concur.