Opinion
October 18, 1937.
In an action by the plaintiff for separation, wherein the defendant counterclaimed for a judgment of separation, appeal from a default judgment dismissing plaintiff's complaint and awarding the defendant judgment of separation dismissed. On appeal from order denying plaintiff's motion to vacate a default judgment and to strike the case from the calendar, order affirmed, without costs. In our opinion, the judgment here entered was by default and is not appealable. The plaintiff by her subsequent motion so construed it. The motion to vacate this default was properly denied in the absence of a showing of a meritorious defense.
I vote to dismiss the appeal from the judgment by default in this action for a separation, to reverse the order denying plaintiff's motion to set aside the inquest and that judgment, and to remit the cause to the Special Term for trial. There has been a trial of the issue of adultery only, which is pleaded as a defense. The jury's verdict upon that issue in defendant's favor is merely advisory; it is not conclusive. Such a verdict is conclusive in an action for divorce when adultery is the basis of the cause of action (Civ. Prac. Act, § 1149), or of a counterclaim in such an action. Further, the judgment for defendant is in contravention of rule 283 of the Rules of Civil Practice; and vide Sigmund v. Sigmund ( 233 App. Div. 214, 216).