
    James Maguire, Appellant, v. Nellie Maguire, Respondent.
    
      Motion to open a default in an action for divorce — denied, where neither an affidavit of merits nor a proposed answer was presented by the moving party.
    
    On a motion by a woman to open a judgment of absolute divorce, taken against her by default, the moving party did not present an affidavit of merits or a ■ proposed answer, or deny the charge of misconduct set forth in the complaint, except by stating that she had “a good and valid defense to this action.” The only excuse offered by her for suffering the default to be taken was that the person who served the papers upon her told her to throw them away, as the plaintiff was “making a bluff,” and that, not understanding the nature of the papers served upon her, she dismissed the matter from her mind. It was uncontradicted that she was an intelligent person and could read and write.
    
      Held, that her motion should be denied.
    O’Bbien, J., dissented.
    Appeal by the plaintiff, James Maguire, 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 the 9th day of June, 1902, opening the defendant’s default in an action for an absolute divorce.
    
      James A. Douglas, for the appellant.
   McLaughlin, J.:

This action was brought to procure a divorce. The summons and complaint were personally served upon the defendant on the 28th of January, 1902. She did not appear in the action, and thereafter judgment was rendered dissolving the marriage contract oh the ground of defendant’s adultery. Some time after a certified copy of the judgment had been served upon the' defendant, she applied for leave to excuse her default and serve an answer. The motion was granted and the plaintiff has appealed.

We think this order should be reversed. There is nothing in the-moving papers which excuses the defendant’s default in appearing, nor does it appear therefrom that she has a valid defense to the ■action. She does not even present an affidavit of merits, or a proposed answer, nor does she even deny the charge of adultery set out in the •complaint, except in the statement that she has “ a good and valid defense to this action.” Ho excuse was offered for the default, except she says the one who served the papers upon her told her to throw them away, as the plaintiff was making a bluff,” and she :says she thereupon dismissed the matter from my mind, as I was without money and was unable to procure a lawyer or consult with my friends or relatives.” It is true she says she did not understand the nature of the papers served upon her, but the fact is uncontradicted that she is an intelligent person and can read and write. There is nowhere in the affidavit any statement of merits (State Bank of Syracuse v. Gill, 23 Hun, 406), nor is a proposed answer presented. The rule seems to be well settled that, when one is in default for failure to serve a pleading and asks to have the default excused, a copy of the proposed pleading must be annexed to the moving papers. (Allen v. Fowler & Wells Company, 45 App. Div. 506.)

We have, therefore, a case in which a party admits the personal service of the summons and complaint upon her; who does not deny the charge of adultery therein set forth, except as stated that she has a good and valid defense to this action ; ” who does not present an affidavit of merits or a proposed answer, or any facts from which the court can see that a trial could possibly be to her interest, otherwise than the gratification which it might afford her to •subject the plaintiff to annoyance, trouble and expense. Under such facts, we think her motion should have been denied.

The order appealed from, therefore, must be reversed and the motion denied, without costs.

Van Brunt, P. J., and Laughlin, J., concurred; O’Brien, J., dissented.

O’Brien, J. (dissenting)!

I assent to the proposition that the general rule of practice requires that a motion to open the default of a defendant should be Based upon an affidavit of merits and service of a proposed answer, •and that some satisfactory excuse should be presented to justify the granting of such a motion ; and I think further that hr ordinary actions this rule should be rigidly .enforced, even' to the extent of- requiring, as a' condition precedent to the granting of such a motion that the default should be explained and an affidavit of merits' and a proposed answer should be served. . In an action, however, to dissolve the marital relation, not only the parties but the pub-' lie are concerned to the extent that this relation should not be needlessly severed. The rule, of practice, therefore, with respect to the papers to be used on the motion should riot be too rigidly construed sp as to debar the wife from interposing her defense, if she has any,, because of some omission in the motion papers, if this can be supplied. Here the defendant swears she has a defense, and gives a reason more- or less plausible for her default, and although no affidavit of merits or proposed answer was served with the motion papers, no harm was' done, for the reason- that the motion was-granted conditional upon submission, with the proposed .order opening the default, of ari affidavit of merits and a proposed answer and a stipulation waiving alimony pendente lite and consenting to accept-short notice of. trial.

■ By. these conditions, the trouble, delay and expense to the plaintiff were minimized and all his rights protected, while at the same time-the defendant was given, upon complying with the terms, an opportunity to interpose her defense.

I;" therefore, dissent from the conclusion reached by the majority •of; the .court, and think that' the order should be affirmed.

! Older Reversed and motion denied, without costs.  