
    Elna Fabel, Respondent, v. Howard Fabel et al., Appellants.
   In an action (1) for determination of claims adverse to plaintiff’s claim of title to certain real property and (2) for partition, defendants appeal from an order of the Supreme Court, Suffolk County, entered February 17, 1969, which (a) denied their motion to open their default in pleading and (b) appointed a referee in partition. Order reversed, on the law and the facts, with $10 costs and disbursements, and motion granted. Defendants’ time to serve an answer is extended until 10 days after service upon their attorney of a copy of the order to be entered hereon, with notice of entry thereof, which answer shall name the defendants interposing such answer. The record clearly shows that defendants’ default in pleading was not willful and that they assert facts as defenses which may entitle them to some form of relief. Under the circumstances, the denial of the motion to open their default constituted an abuse of discretion (D'Aliso v. Toback, 9 A D 2d 894; Long Is. Trading Corp. v. Tuthill, 243 App. Div. 617; Morabito v. Champion Swimming Pool Corp., 18 A D 2d 706; cf. CPLR 5015, subd. [a]). Brennan, Acting P. J., Rabin, Hopkins, Martuscello and Kleinfeld, JJ., concur.  