— This appeal is based upon an apparently contradictory decision at special term upon the same substantial facts. Upon the 14th day of December, 1882, the plaintiff entered up a judgment against the defendant for $3,161.44 by default. The roll shows that the summons was served by one Bogers. The defendant denies that he had been so served, and made a motion to sef aside the judgment for that reason. The affidavits were conflicting and the court ordered a reference to take proof. The referee reported that there had been no service of the summons. The special term denied the motion with a leave to renew. The motion was renewed upon an affidavit which impeached the plaintiff’s character, and upon the same papers which had been the basis of the former motion. The court set aside the judgment so far as to permit an answer to be served. The defendant did answer and the plaintiff appealed; the defendant then appealed from the order refusing to set aside the judgment. The *415plaintiff moves to dismiss that appeal because the defendant renewed the motion and took a benefit under the subsequent order, and is therefore bound to submit to the former order. Upon the appeal from the second order by plaintiff, he claimed to reverse that because the rehearing was improper upon the same fact. If the second order is reversed because it was improper to have the motion a second time heard, and the appeal from the first order by the defendant is. dismissed "because he is estopped by the second order, -the defendant will be without the power to present his case upon appeal. We think the claim made by plaintiff as to the illegality of the renewal motion untenable.
The right to renew was reversed by the order denying the first motion. The additional affidavit of defendant did furnish new facts of weight upon the renewed motion. The plaintiff was stated to be a person 'likely to procure a false affidavit of service. That he had a bad character : had been arrested for crime and had been found guilty of procuring a deed by fraud. The report of the referee is abundantly sustained by the "evidence. The parties to the occurrence disagree. Bogers says he served the paper, Wood denies the service. The surrounding facts are in favor of defendant’s testimony.
Bogers was a real estate broker and not a person who was accustomed to serve papers. The claim is a large one, and the plaintiff delayed some three months after he could have entered judgment. Bogers says he served two papers at the same time, one was the summons in this case and the other a summons and complaint in the Kings county court. The defendant employed an attorney in due time to defend in the county court, and although he denies any debt in this case, and although he had a store well stocked in Brooklyn in his possession, he waited until the sheriff came with the execution before making any defense. Although the report of the referee is not subject to as strict a rule in respect to the result upon the disputed question of fact upon issues tried, yet the *416report should stand even if only fairly supported by the evidence. A referee has the benefit of the aid derived from the inspection of the witnesses, and of their manner upon the stand as well as upon the trials of issues in actions. Assuming that the defendant had failed to remember the service, he was still entitled to answer if he had a defense; but we think the summons was never served, from the evidence and report of the referee.
The order should be modified by striking out the request upon plaintiff’s part to refer. It should be left optional with him to refer or not. As thus modified^ this order aj>pealed fi’om is affirmed, with costs and disbursements. The appeal taken by defendant from the denial of the motion to set aside the judgment should be dismissed, with costs.
Pratt and Dykman, JJ., concur.