This action is brought for a divorce upon the ground of defendant’s adultery. On January 28, 1910, an interlocutory judgment was taken by default. On February 15, 1910, defendant moved to set aside such interlocutory judgment upon the ground that she had never been served with the summons. The court at Special Term decided against her upon tins point, but permitted her to answer as matter of favor, upon payment of the costs of the action, together with ten dollars costs of the motion. The only question here presented is as to the imposition of costs as a condition of granting the favor.
While it is somewhat unusual to impose costs upon a. woman in a matrimonial action, it is within the power of the court (Code Civ. Proc. §§ 724,1769, 1774), and I do not think defendant should com*486plain. In my opinion the learned court at Special Term would have been entirely justified in denying her application altogether. She committed perjury in swearing that she had not been served with the summons and complaint. A woman who would commit perjury respecting this would probably not hesitate to commit perjury about the merits of the action if she thought that she could safely do so. The only reference to merits contained in defendant’s moving papers is to the effect that she has “ a good, substantial and meritorious defense to any action for absolute divorce that my husband may bring against me.” She not only fails to swear that she has stated the facts to her counsel in respect to the present action, and that he has advised her that she has a good and substantial defense upon the merits to the same, but the language of her affidavit, strictly construed, would apply not to this present action, but to one subsequently to be brought.
But beyond a criticism upon the mere form of words is the fact that, although she must have known from the complaint on file and the evidence taken at the time that the interlocutory judgment was rendered, the name of the person with whom it is charged that she committed adultery, she neither denies such adultery herself nor produces any affidavit from the corespondent denying the same. If this action were still pending, upon such an affidavit, no court would grant either alimony or counsel fee.
It appears that the defendant had previously brought an action for separation against the plaintiff, which is still pending, in which alimony was allowed to her during the pendency thereof. It appears without dispute that that alimony was regularly paid up to the time when plaintiff began this action upon the ground of defendant’s adultery. After securing evidence of such adultery he -was probably justified in refusing to pay further alimony in the separation action ; but in any event her remedy for such failure, if she has any, is by motion in that action. It does not appear by satisfactory evidence that defendant is unable to comply with the terms imposed by the order permitting her to come in and defend as matter of favor. The costs in the action outside of disbursements could not exceed twenty-five dollars, and the expense incurred by her in printing this record would be nearly, if not quite, sufficient to pay the same.
*487Upon the whole case, I think that the discretion of the court at Special Term was wisely exercised, and that the order appealed from should be affirmed, with ten dollars costs and disbursements.
Carr, J., concurred.
Order modified on reargument, and as modified affirmed, without costs.