Subdivision 2 of section 1757 of the Code of Civil Procedure permits a plaintiff or defendant in an action brought to obtain a divorce on the ground of adultery, to serve a copy of his pleading upon the corespondent named therein, and provides that within twenty days after such service the corespondent may appear to defend such action so far as the issues affect such corespondent. It further provides: “ 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, *175in said 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 co-respondent.”
The plaintiff proceeded with the trial without serving a copy of the complaint upon the corespondent and the jury found by their verdict that the defendant had committed adultery with the corespondent as charged in the complaint, and the verdict rests solely upon that charge. After the trial, but before judgment, the corespondent appeared by attorney and demanded a copy of the summons and complaint; but plaintiff insisted that the corespondent was not entitled to defend the charge so made against her, because the trial had already taken place, and that judgment should be entered upon the verdict without giving the corespondent an opportunity to defend such charge. An application to stay the entry of interlocutory judgment until after the issue raised by the answer to be interposed by the corespondent was denied, and the corespondent appeals from that order.
I am of the opinion that the corespondent has the right to serve her answer and defend the action, notwithstanding the trial has taken place, so far as the issue affects the corespondent. The statute seems to contemplate that the corespondent may at any time before entry of judgment dissolving the marriage come in and defend the action. Whether the judgment referred to in the statute means the interlocutory judgment or the final judgment need not be decided, because here not even the interlocutory judgment had been entered when the corespondent appeared and served her demand. While the courts have discussed the meaning of this subdivision (Boller v. Boller, 111 App. Div. 240; Dicks v. Dicks, 155 id. 418; Shaw v. Shaw, 156 id. 379; Howatt v. Howatt, 158 id. 28), and there are expressions in some of the opinions tending to sustain the construction contended for by the plaintiff, I think none of the decisions actually sustain that contention.
The language of the statute seems plain, and gives to the corespondent, as I think, an absolute right to make her defense at any time before judgment, unless the summons and complaint is served upon the corespondent, in which case the *176corespondent must appear within twenty days after such service. It is true that no answer had been served on behalf of the corespondent at the time the application for a stay was made; nor does it appear that the plaintiff had complied with the corespondent's demand for a copy of the complaint. It does appear, however, by the affidavit of her attorney that after a copy of the summons and complaint is served he intends on behalf of the corespondent to serve an answer denying the allegations of the complaint so far as they relate to the corespondent.
I am of the opinion that under the circumstances the entry of the interlocutory judgment should be stayed, at least until the time for serving such an answer expires, and if such an answer is served, then till the trial of the issue "raised thereby.
Lambert, J., concurred.
Order affirmed, with ten dollars costs and disbursements, without prejudice to a renewal of the motion upon proper papers.