E. D. Childs and C. M. Stafford, for defendant.

The granting of the order appealed from by the plaintiff, rests in the legal discretion of the judge before whom the motion was made and decided, and being a discretionary order it is not appealable. Martin v. Gould, 41 Super. Ct. (J. & S.) 544; Mead v. Mead, 2 E. D. Smith, 223; Churchill v. Mallison, 2 Hilt. 70; Bolton v. Depeyster, 3 Code R. 141; Carpenter o. Carpenter, 4 How. Pr. 139.

BARNARD, P. J.-This appeal is based upon an apparently contradictory decision at special term upon the same substantial facts. Upon December 14, 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 Rogers, The defendant denied that he had been so served, and made a motion to set 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, upon the report being returned, 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 plaintiff 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

Apsley v. Wood.

1

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 renewed motion untenable. The right to renew was reserved 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. Rogers says he served the paper. Wood denies the service. The surrounding facts are in favor of defendant's testimony. Rogers 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. Rogers 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 as upon issues tried, yet the report 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

Stern v. Moss.

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 consent upon plaintiff's part to refer. It should be left optional with him to refer or not, as thus modified this order appealed from 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., concurred.

STERN, APPELLANT, v. MOSS, RESPONDENT.

N. Y. COMMON PLEAS, GENERAL TERM, MARCH, 1884.

SS 549, 550, 2894-2904, 3209-3211.

Execution against person in district courts.

Where an action is brought in the district court of New York city, upon contract, and an order of arrest is granted upon affidavits showing facts extrinsic to the cause of action, which order is not vacated, to entitle plaintiff to judgment and an execution against the person, he need only prove his contract claim. (Decided June 30, 1884.)

Appeal by plaintiff from judgment of district court of New York city.

A summons and order of arrest in this action were served upon the defendant, and on August 3, 1883, the

Stern v. Moss.

parties appeared in court and issue was joined between them. The pleadings were oral. The complaint was for goods sold and delivered, and the answer was a general denial. A motion was made to vacate the order of arrest which was granted upon extrinsic facts set forth in affidavits showing that the goods were obtained upon false and fraudulent representations. Counter affidavits were made in opposition thereto. On August 4, 1883, the motion to vacate the order was denied, and the trial of the action was adjourned to August 8, 1883, when it was tried before Justice ANGEL (sitting in place of Justice McGown), who, on August 15, 1883, rendered judgment for the defendant, dismissing the action, with costs.

Upon the trial the plaintiff only proved the sale and delivery of the goods in question and non-payment therefor. The defendant offered no proof, but moved to vacate the order of arrest for want of proof to sustain it. The plaintiff insisted that upon the evidence, as it stood, he was entitled to a money judgment for the value of the goods, together with the direction therein, the words, "defendant liable to execution against his person."

From the refusal of the justice to insert such direction and from the judgment rendered this appeal is taken.

Louis H. Mayer, for appellant.

Jacob A. Canton, for respondent.

PER CURIAM.-The justice in a well considered opinion, refers to Coles v. Hannigan (8 Daly, 43) as authority for his decision. In that case the action was commenced by a warrant of arrest in the first instance, pursuant to subdivision 3, section 16, chapter 346 of the Laws of 1857. The process used determined the

Stern v. Moss.

character of the action, and as the fraud was not denied, nor any motion made to vacate the arrest, it was held the defendant was liable to arrest upon execution upon proof only of his indebtedness. But section 10 of the act of 1857, allowing the commencement of an action by a summons, warrant or attachment, was repealed by section 3209 of the Code of Civil Procedure, which provides that an action brought in the district courts must be commenced by voluntary appearance of the parties or by the service of a summons.

By section 3210 of the Code, article 3, chapter 19, is made applicable to the district courts. This article includes sections 2894 to 2904, subject to the qualifications mentioned in section 3211. This latter section provides that existing statutes in relation to the district courts, which are not repealed, shall still be applicable as to the manner of applying for, granting and executing an order of arrest, &c.

As an action in these courts must now be commenced by a summons, it would appear that an order of arrest therein is to be regarded as a provisional remedy somewhat analogous to the practice under section 179 of the old Code of Procedure, where the action on contract might be prosecuted irrespective of the right to arrest upon extrinsic facts.

Sections 549 and 550 have no application to arrests in the district courts of the city of New York, and subdivision 4 of section 549 is the only statute that requires that fraud in contracting the debt shall be proved upon the trial, if the plaintiff suing to recover money due upon a contract seeks the arrest of the defendant. Before the enactment of subdivision 4 of section 549, it was never necessary that the plaintiff should allege in his complaint and prove at the trial that the debt that he sued to recover was fraudulently contracted. His cause of action was an ordinary money demand, and the fraud used by the defendant in in