Biddle v. Biddle

282 A.D. 948 | N.Y. App. Div. | 1953

In an action by the guardian ad litem of an infant to annul the infant’s marriage to defendant, an interlocutory decree was entered on defendant’s default on the grounds of nonage and defendant’s fraud in inducing the marriage. On August 7, 1953, defendant’s motion to open his default was granted on certain conditions, with which he did not comply, and an order was thereupon entered on September 16, 1953, denying the said motion, from which defendant appeals. Order reversed, without costs, and motion granted on the following conditions: (a) That defendant serve his verified answer within ten days from the date of this determination; (b) that defendant appear and be ready for trial on the opening day of the next term of the court, and (c) that, on or before November 30, 1953, defendant pay all arrears for the support of the child due under the interlocutory decree of annulment, entered June 27, 1953. The interlocutory decree will not be vacated unless defendant complies with all the conditions imposed by this determination. Although we are of the opinion that defendant’s failure to comply with the conditions imposed by the Special Term in its memorandum of August 7, 1953, may not have been inadvertent, in view of the fact that this is a matrimonial action, we are impelled to give defendant this final opportunity to contest this action on the merits. Nolan, P. J., Adel, MaeCrate, Schmidt and Beldock, JJ., concur.