(dissenting):
I dissent from^the views expressed by Hr. Justice Ingraham.
This is an action for divorce', on the statutory grounds brought by a husband against' his wife, in which he has. thus far been successful, having obtained an interlocutory judgment awarding him an absolute divorce, from which separate appeals have been taken both by the wife and by the corespondent named in the complaint. The sole question raised by the briefs of the appellants on this appeal relates to the rights of the corespondent under subdivision 2 of section 1757 of the Code of Civil Procedure, and, therefore, it is only necessary for us to consider the scope and effect of that subdivision as applied to the facts before us..
The action was. commenced in September, 1903, thé .complaint alleging that the defendant at various times during, that year had committed adultery with one Theodore E, Lawton. The Wife interposed an answer denying the adultery, and pursuant to an order of the Special Term the issues of fact raised by these pleadings were tried on February 5, 1904, before a jury, which found that the defendant had committed adultery with said Lawton during the year mentioned. At this trial the corespondent appeared and testified as a witness. Thereafter the case was brought on at Special .Term, and in qonformity with the verdict previously rendered at Trial Term an interlocutory judgment was entered in favor of the plaintiff granting him a divorce, which, however, was reversed on *249appeal to this court (Boller v. Boller, 96 App. Div. 163) and the case was thereupon restored to the Special Term calendar.
This was. the situation when the corespondent on March 25,1905, through his attorney served by mail upon plaintiff’s attorney a notice of appearance and a. demand that a copy of the summons and complaint be served upon him. On March twenty-eighth the plaintiff complied with this demand, and on April seventeenth the corespondent served plaintiff with a copy of his answer, being a .general denial as to him of the charge of adultery. When the case thereafter came on for hearing at Special Term on April nineteenth the corespondent moved to strike it from the calendar on the ground that he had received no notice of trial since the joinder of issue. Upon this subject it was shown by affidavit that at the time the plaintiff served upon the corespondent a copy of his summons and complaint, March twenty-eighth, he also served a notice of trial, stating that the action would be brought to-trial on April eighteenth, but this notice was returned by the corespondent on the ground that it was served before he had answered and before issue had been joined as to him. Although no other or subsequent notice of trial had been given, the_ corespondent’s motion to strike the case from the calendar was denied as was also his motion to have the issues of fact raised by his answer tried by a jury. The plaintiff thereupon and against the corespondent’s objection was permitted to introduce in evidence the minutes of the previous trial before the jury and the record of the verdict finding that the wife had . committed adultery with the corespondent. Notwithstanding the fact that the issues raised by the corespondent’s answer had not been disposed of, and that he duly demanded a trial of those issues, the court, upon the record of the previous trial, awarded plaintiff his interlocutory judgment of divorce on the ground of adultery as found by the ■
It is from this judgment that the separate appeals have been , taken by the wife and the corespondent, and we are called upon to determine the rights of the latter under the circumstances, above stated, whether, after having come into the action and served an answer denying his participation in the alleged adultery, he could be deprived of a trial of this issue of fact..
Subdivision 2 of section 1757 of the Code of Civil Procedure, *250upon which the corespondent relies, 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 co-respondent named therein,”,who, “at any time within twenty days .'after such service * * * may appear to defend such action, so far as the issues ” affect him. The section further provides that “ if no such service be, made, then at any time before the entry of judgment-any co-respondent named in any of. the pleadings shall have the right, at any time before 'the entry of judgment, to appear either in person or by attorney in said action and demand of plaintiff’s attorney á 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 co-respondent■
, In approaching the consideration of this section it must be borne in mind that the Legislature, in the exercise of its authority,to regulate marriage and divorce for the welfare of society and the State* .may prescribe the procedure which must be observed in order to t dissolve the marital relations or to secure the rights of one named as corespondent. , The’ validity of the act is not ‘attacked, there being liere^ involved merely the question- of its construction, It is, our duty, therefore, to ascertain its meaning and scope,, and then give it force and. effect. If the language is clear and - unambiguous, we cannot warp or twist ’.its meaning because we think that a statute 'different in terms from.the one. enacted would be better suited to adjust the equities between particular litigants. The record before us undoubtedly shows that the present corespondent has been guilty of a long and vexatious delay in invoking the protection of the statute; and while his conduct does not- commend itself'to the court, nevertheless we have no power, for that reason, to deprive him of a right given- by the- law. The appellant Lawton knew that lie was named corespondent in the complaint. He appeared as a witness before the jury when' the issue of' defendant’s alleged adultery with him was tried. He made no attempt at that time to intervene, but on the contrary waited until all questions of-fact raised by the complaint and answer had been\ determined in plaintiff’s favor before he demanded an opportunity-to be heard. He has resorted to dilatory tactics which we do not. hesitate to' condemn, but, conceding that to be so, he cannot be denied the right *251conferred upon him. by the statute, “at any time before the entry of judgment,” to “ appear to defend such action, so far as the issue's affect” him as corespondent.
In defining the status of a corespondent under this section, the Appellate Division of the fourth department in Billings v. Billings (73 App. Div. 69) said through Mr. Justice Wi-lliams that he “ is not, by the terms of the statute, called a defendant, but he is allowed to appear and defend the action, and may very properly be regarded as a party defendant from the time he appears and serves an answer to the complaint. He is not obliged to defend, and cannot be compelled to do so. His appearance is Voluntary, but if he elects to come into the action he ought to be regarded and treated as a party defendant from that time.” And by one of the judges of the first judicial district at Special Term it was said (Rixa v. Rixa, 35 Misc. Rep. 227) that “ when a person is given the privilege of appearing and defending an action by express legislative enactment, he thereby becomes a party to such action, and as such becomes vested with all the rights and privileges of a party except as limited by statute.”
By way of argument we may refer to section 452 of the Code, which although relating to a different subject, yet contains similar provisions, and by analogy throws light upon the question now presented. That section provides in part that “ where a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, or in real property for injury to which the complaint demands relief, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment.” That section was before the courts for consideration in Wood v. Swift (81 N. Y. 31) where certain parties had been brought in as defendants after the action had been referred, the evidence taken and the case finally submitted to the referee for his decision on the merits. The court, although granting the application bringing in the new parties, directed by its order that the case should remain and continue for trial before the referee, the same as if the new parties had been parties from the beginning of the action, they to have the privilege, however, "of cross-examining the witnesses previously produced and examined before the referee. On *252appeal, however, it was held that so much of the order as directed the. case to continue before the referee with the right of cross-examination of witnesses was erroneous, Judge Eabl saying that the court “ could not compel ” the new parties “ to accept the referee who had been appointed, and to accept the evidence which li4d been taken, even with the right of cross-examination which was secured to them.” And in further discussing the rights of the appellant, who was one of the new parties brought into the action, he said: “ The-action does not appear in the papers before us to be one which could be referred without consent. The appellant had the right to have the cause tried by the court or a jury, and he at least had the right to be heard as to the appointment of a referee, and he had the right to be present.when the witnesses were sworn and examined.”
It is true that section 452 provides that a person specified shall be made a party-to the action, while subdivision 2 of section 1757 does .not in terms so recite, but from the language used in the latter section we are of the opinion, as already indicated, that it was the purpose of the Legislature to give a corespondent the rights of a party to the action in so far as the issue, of adultery affected him. Any other interpretation would render meaningless the words which permit him at any time before the entry of judgment to “ defend ”. the action. ' ' ,
Eor do we find in the section language which either expressly or by implication confines a corespondent, as suggested in the ^opinion of Mr., Justice Inqbaham, <¿to a defense of the undisposed of issues at the time he comes into the litigation.” If it had been the intent of the Legislature to só limit a corespondent’s' rights, such limitation could have readily been expressed in thé accurate and proper words used by the learned justice in his opinion, and the fact that no such words, are found in the section itself is.strong evidence that the Legislature did not intend to impose any'such limitation.. On the contrary, it seems to us thatrthe Legislature intended, as suggested by Mr. Justice Williams in the Billings Case (supra), that a corespondent should be regarded as a party to the action in so far as the issue of adultery affected, him with all the rights of a party, ' ' ' ,
If the plaintiff had desired to guard against vexatious delay caused by the belated application of the corespondent, it was within *253his power to do so by serving a copy of his complaint upon the corespondent in the first instance as permitted by the section. This he did not do, so he is equally responsible with the corespondent for the present situation. A case may arise wherein a corespondent named in a divorce action may be outside the State and may be ignorant of its pendency until the issues involving his good name have been disposed of by the jury. Under such circumstances it would be unjust and contrary to the statute to deprive him of the opportunity to be heard in the action or to present evidence upon the issues so far as they affect him ; yet such a result would follow under the view taken by Hr. Justice Ingbaham that a corespondent only has the right to defend such issues as may be undisposed of at the time he comes into the litigation. The statute is salutary and remedial and the reason for its enactment apparent. It was designed to prevent innocent parties from being charged with immorality and convicted without an opportunity of defendingthemselves. If it is to effect this purpose, as expressed by its language, which is clear and certain, it should be construed so as to extend to a corespondent the rights of a party to the action in so far as the issues affect him, and if everything that has taken place prior to his coming into the action is a sealed book, which he is forbidden to open, the end sought by the statute cannot be accomplished.
I think, therefore, the court erred in refusing to the appellant the right to litigate the issues raised by his answer and in entering judgment while such issues were undisposed of.
The judgment appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellant Lawton to abide the event. .
Judgment affirmed, with costs. Order filed. .