Henry Rohwer, Respondent, v. Earl W. Quirk and Others, Defendants, Impleaded with Edward J. Brandt, Appellant

Henry Rohwer, Respondent, v. Earl W. Quirk and Others, Defendants, Impleaded with Edward J. Brandt, Appellant. Process — motion to set aside summons •— defendant overcame service — error to refer question — order of reference reversed and motion granted. Appeal from an order of the Supreme Court, entered in the Bronx county clerk’s office on October 26, 1927, as resettled by an order entered on November 23, 1927, referring a motion by appellant to set aside the alleged service of the summons and complaint upon him to an official referee to take testimony upon the alleged service and report thereon to the court, instead of granting the motion. [MAJORITY — Per Curiam.] Per Curiam. We conclude from the moving papers and the papers in opposition thereto that defendant has overcome the alleged proof of service by the process server and that the court should have granted the motion to set aside the alleged service instead of referring the matter to an official referee. Accordingly the order of reference should be reversed, with ten dollars costs and disbursements, and the motion to vacate the service granted. Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted.