This action was brought to procure a divorce. The summons and complaint were personally served upon the defendant on the 28th of January, 1902. She did not appear in the action, and thereafter judgment was rendered dissolving the marriage contract oh the ground of defendant’s adultery. Some time after a certified copy of the judgment had been served upon the' defendant, she applied for leave to excuse her default and serve an answer. The motion was granted and the plaintiff has appealed.
We think this order should be reversed. There is nothing in the-*535moving papers which excuses the defendant’s default in appearing, nor does it appear therefrom that she has a valid defense to the ■action. She does not even present an affidavit of merits, or a proposed answer, nor does she even deny the charge of adultery set out in the •complaint, except in the statement that she has “ a good and valid defense to this action.” Ho excuse was offered for the default, except she says the one who served the papers upon her told her to throw them away, as the plaintiff was “ making a bluff,” and she :says she thereupon “ dismissed the matter from my mind, as I was without money and was unable to procure a lawyer or consult with my friends or relatives.” It is true she says she did not understand the nature of the papers served upon her, but the fact is uncontradicted that she is an intelligent person and can read and write. There is nowhere in the affidavit any statement of merits (State Bank of Syracuse v. Gill, 23 Hun, 406), nor is a proposed answer presented. The rule seems to be well settled that, when one is in default for failure to serve a pleading and asks to have the default excused, a copy of the proposed pleading must be annexed to the moving papers. (Allen v. Fowler & Wells Company, 45 App. Div. 506.)
We have, therefore, a case in which a party admits the personal service of the summons and complaint upon her; who does not deny the charge of adultery therein set forth, except as stated that she has “ a good and valid defense to this action ; ” who does not present an affidavit of merits or a proposed answer, or any facts from which the court can see that a trial could possibly be to her interest, otherwise than the gratification which it might afford her to •subject the plaintiff to annoyance, trouble and expense. Under such facts, we think her motion should have been denied.
The order appealed from, therefore, must be reversed and the motion denied, without costs.
Van Brunt, P. J., and Laughlin, J., concurred; O’Brien, J., dissented.