Broderick v. Saretsky

The learned court came to the conclusion that , he had no power to review the determination of the referee. We *738believe that he had such power under paragraph b, subdivision 10, of section 7 of the New York City Municipal Court Code, under which the reference was granted, although he would not have under paragraph f of the same subdivision.

The decision of the referee that the summons and complaint were not served on the defendant was against the weight of the evidence. The defendant allowed almost nine years to go by without making this motion. During this period he was examined several times in supplementary proceedings and was fully aware of the judgment which had been entered against him. The inference is irresistible that he had been served and had decided to do nothing about it for all these years, especially in view of his failure to call any corroborating witnesses to sustain his claim of no service.

Nor should the defendant’s default be opened and leave given to appear and answer. Cross laches on his part is a bar. Furthermore, there is no showing of any meritorious defense to the action.

Order vacating judgment reversed, with ten dollars costs, and judgment reinstated. Appeal from other orders dismissed.

McCook, Hammer and Rosenman, JJ., concur.