Appeal by the defendant from an order of the Supreme Court, entered in the Kings county clerk’s office on October 7, 1940.
Order denying motion to vacate interlocutory and final judgments entered June 17, 1938, and September 26, 1938, respectively, reversed on the law, with ten dollars costs and disbursements, and motion granted to the extent of vacating said judgments, awarding a counsel fee of $100 to the defendant on this appeal, and remitting the cause to the Special Term for the purpose of making appropriate provision for the suitable care and maintenance of defendant during her life, as provided by section 7, subdivision 5, of the Domestic Relations Law, such provision to date from December 18, 1938, the time of her discharge from a State institution. Upon the determination of an appropriate amount to be paid during *766the life of the wife, as required by said section 7, subdivision 5, judgment of annulment should be entered accordingly.
The judgments were validly entered as to annulment and custody of- the child, but the only provision for the support of the defendant was to the Department of Mental Hygiene. There was a failure to provide for defendant’s support and maintenance in the event of her discharge from an institution.
Lazansky, P. J., Adel and Close, JJ., concur; Hagarty, J., in opinion, concurs for reversal of the order and the vacatur of the interlocutory and final judgments, but dissents from the direction to enter a new judgment of annulment, and votes to grant a new trial upon service of an answer by defendant, without costs and without prejudice to an application for expenses, alimony and counsel fee, upon a proper showing, pursuant to section 1169 of the Civil Practice Act. Taylor, J., concurs with Hagarty, J.