In an action by the wife for an annulment of her marriage by reason of defendant’s fraud, defendant appeals: (a) from an order of the Supreme Court, Kings County, dated November 25, 1959, denying, after hearing oral proof, his motion to vacate the service of the summons and complaint upon him, to vacate the default judgment against him, to open his default in answering the complaint, to permit him to interpose his answer, and for other relief; and (b) from a prior order of said court, dated November 9, 1959, directing a hearing of the motion upon oral proof. Order of November 25, 1959, modified by striking out its decretal paragraph denying the motion in all respects, and by substituting therefor: (1) a paragraph granting the motion to the extent of vacating the judgment of annulment, opening defendant’s default in answering the complaint, and permitting defendant, within 10 days after the entry of the order hereon, to interpose his verified answer; and (2) a paragraph denying the motion in all other respects. As so modified, order affirmed, without costs. We believe the record supports the finding of the Special Term that defendant was duly served with process in this action. We also believe, however, that in the exercise of discretion and in the interests of justice, the default judgment entered against defendant should not be allowed to stand and that he should be given a further opportunity to defend, because: (a) this is a matrimonial action, and (b) prima facie he appears to have a meritorious defense. Appeal from order on November 9, 1959, dismissed as academic. Beldock, Acting P. J., Kleinfeld, Christ and Pette, JJ., concur; Brennan, J., not voting.
Basilisco v. Basilisco
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