(dissenting) :
' I am unable to. concur in the prevailing opinión. The issues raised by the answer of the corespondent had. to be disposed- of before judgment could be'entered and.this was not done.
The action was brought for an absolute divorce on statutory grounds. The- defendant was alleged to have committed adultery With the corespondent here appealing and he was the only person mentioned as a coresjiondent in the complaint. Having appeared in, the action, demanded and received from plaintiff’s attorney before the entry of judgment a copy of the summons and coin-plaint, and interposed an answer thereto denying the material allegations thereof, he had an absolute right under subdivision 2 of section 1757 of the Code of Civil Procedure to a trial of the issues, so far as the same affected "him, before judgment could be entered. This subdivision of the section oí' the Code provides that in an action brought to obtain, a divorce on the ground of adultery, the plaintiff or defendant may serve'a copy'of his pleading on .the *247corespondent named therein, and, at any time within twenty days after such service, the corespondent may appear to defend such action so far as the issues affect such corespondent. It also provides that if no such service be made, then at any time before the entry of judgment any corespondent named in any of the pleadings shall have the right at any time before the entry of judgment to appear in the action and demand of plaintiff’s attorney a copy of the summons and complaint, which must be served within ten days thereafter, and he may appear to defend such action so far as the issues affect such corespondent.
The purpose of this statute is obvious. It is to enable a corespondent to intervene in the action and protect his or her reputation when the same might be injured or destroyed by collusion between the originial parties to the action, or by false testimony given by one of them. The prevailing opinion either ignores or else overlooks the purpose of the statute and in effect repeals the statute itself. If a corespondent must accept the situation precisely as he finds it when he gets into the action, if a trial has been had, then there is no opportunity to defend the action so far as the issues relate to him, and this is well illustrated in the case now before us. Here the corespondent was the only one named in the complaint. A trial had been had upon issues framed, before a jury, which had found that the defendant had committed adultery with the corespondent. Upon these findings proceedings were about to be taken, for judgment. If the corespondent could only accept the situation as he found it, then the only issue which related to him had been tried and disposed of, viz., that he had committed adultery with the defendant.
It is true that a corespondent is not, in express terms, made a party to the action, but this is immaterial, inasmuch as he is allowed-to appear and defend so far as the issues relate to him, and to this extent at least he must be.considered as a party. Neither of the original parties to the action is obliged to bring him in, and if they do not, he is not obliged to come in, and cannot be compelled to do so. He, however, has a right to make himself a party to the action, and if he does so he must be regarded and treated as such, and before'judgment can be entered the issues raised by an answer interposed by him must be disposed of. If he is unsuccessful in *248his defense, then he may he required to pay costs, (Billings v. Billings, 73 App. Div. 69.)
It is no, answer to the foregoing suggestions to say he should have appeared earlier, in the action, because the statute gives him, the right to appear at any time before the entry of judgment, and the plaintiff. could have limited the time within which he could get into the action by serving the summons and complaint upon him without waiting to have the corespondent demand that such service be made.
The judgment appealed from, therefore, should be reversed and a new trial ordered, with costs to the corespondent, to abide the event of the action.
O’Brien, P. J., concurred.