Appeal by defendant from an order which denied his motion to vacate a judgment of divorce on the ground that the summons had not been served on him, that a notice of appearance interposed in his behalf was so interposed without authority from him, and that the judgment had been obtained by fraud. Order reversed on the law and the facts, without costs, and the matter remitted to the Special Term so that a hearing may be had by the justice there presiding, or by an official referee, to determine the questions of fact as to service of process and the authority of the attorney who purported to appear for appellant in the action. The issues should not have been determined on affidavits, especially where, as here, a demand for a hearing was made. Recourse should be had to the usual practice of seeing and hearing the witnesses who may be produced, with opportunity for cross-examination. (See Josephson v. Josephson, 276 App. Div. 845, and cases cited.) Nolan, P.J., Carswell, Johnston, Adel and Wenzel, JJ., concur.