
    Percy De M. Betts, Respondent, v. Emma Harie Betts, Appellant.
    First Department,
    December 31, 1914.
    Husband and wife — annulment of marriage — right of defendant to vacate interlocutory judgment upon ground that she had been erroneously advised that service upon her was defective.
    A defendant who failed to appear in an action for the annrdment of a marriage because she was wrongly advised by- her. attorney that service upon her by publication was defective isrentitled to an order vacating the interlocutory judgment and -permitting her to answer where she claims to have a good defense and it appears she promptly applied to the court to excuse her default’aftel consulting another attorney.
    
      Appeal by the defendant, Emma Marie Betts, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on or about the 18th day of September, 1914,' denying* her motion to open her default herein.
    
      Alfred D. Olena, for the appellant.
    
      Reid L. Carr, for the respondent.
   McLaughlin, J.:

This action was brought to procure a judgment annulling a marriage contract upon the ground that when the same was entered into the defendant was prohibited by a judgment in another action from again marrying. The summons was served in the city of New York upon the defendant by publication, notwithstanding she was at that time in such city. As soon as the matter was brought to her attention, and while she had a right to appear in the action, she consulted an attorney who advised her it was unnecessary to appear; • that the service was defective; and that the court by reason of that fact could not obtain'jurisdiction. On the last day in which she had a right to appear and interpose an answer, she again consulted the same attorney and asked him to appear and put in an answer,- which he declined to do, insisting she should not appear in the action. An interlocutory judgment having been entered adjudging that the plaintiff, after the expiration of three months, would be entitled to a final judgment annulling the marriage, she consulted another attorney and, upon his advice, made a motion to vacate the interlocutory judgment, excuse her default and interpose an answer. The motion was denied and she appeals.

I think the motion should have been granted. The defendant insists she has a good defense to the action, and as soon as its commencement was called to.her attention she manifested a desire to defend and would have done so except for the advice of the attorney whom she consulted. She was badly advised, and as soon as she ascertained that fact she consulted another attorney, who promptly applied to the court to excuse her default and permit her'to'-■interpose an' answer. "tNo" reason whatever is suggested in the papers used in opposition to the motion why she should not be afforded an opportunity to defend the action if she so desires.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Clarke, Laughlin, Scott and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  