Opinion
February, 1930.
Order denying defendant's motion to open her default reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, without costs. The record indicates that the motion for reargument was made before the entry of an order upon the denial of the original motion of the defendant to open her default and that the only order entered was the order entered after the reargument, which order granted a reargument and denied defendant's motion. The appeal is, therefore, properly before this court. The rule in respect to opening defaults in ordinary actions is not to be applied so rigorously in a matrimonial action. ( Mott v. Mott, 134 App. Div. 569, 574.) The defendant adequately excused her default and the facts shown in the record required that her motion be granted, especially in view of the State's interest in the marital status. Lazansky, P.J., Hagarty, Carswell, Scudder and Tompkins, JJ., concur.