I assent to the proposition that the general rule of practice requires that a motion to open the default of a defendant should be Based upon an affidavit of merits and service of a proposed answer, •and that some satisfactory excuse should be presented to justify *536the granting of such a motion ; and I think further that hr ordinary actions this rule should be rigidly .enforced, even' to the extent of- requiring, as a' condition precedent to the granting of such a motion that the default should be explained and an affidavit of merits' and a proposed answer should be served. . In an action, however, to dissolve the marital relation, not only the parties but the pub-' lie are concerned to the extent that this relation should not be needlessly severed. The rule, of practice, therefore, with respect to the papers to be used on the motion should riot be too rigidly construed sp as to debar the wife from interposing her defense, if she has any,, because of some omission in the motion papers, if this can be supplied. Here the defendant swears she has a defense, and gives a reason more- or less plausible for her default, and although no affidavit of merits or proposed answer was served with the motion papers, no harm was' done, for the reason- that the motion was-granted conditional upon submission, with the proposed .order opening the default, of ari affidavit of merits and a proposed answer and a stipulation waiving alimony pendente lite and consenting to accept-short notice of. trial.
■ By. these conditions, the trouble, delay and expense to the plaintiff were minimized and all his rights protected, while at the same time-the defendant was given, upon complying with the terms, an opportunity to interpose her defense.
I;" therefore, dissent from the conclusion reached by the majority •of; the .court, and think that' the order should be affirmed.
! Older Reversed and motion denied, without costs.