(dissenting). Plaintiff’s New York action for annulment of marriage was commenced April 29, 1952, by personal service of the summons and complaint on the defendant. The complaint alleged fraud by the concealment from the plaintiff of defendant’s three previous marriages; of his true name; of his discharge as a psychoneurotic from the Netherlands Army and Merchant Marine, and of the existence of mental illness.
Defendant defaulted in the New York action. After his default he commenced an action in the State of Washington for divorce. Process in that action was served on plaintiff’s mother in New York, but not on plaintiff personally. A default judgment was granted in Washington October 24, 1952. Findings of fact and conclusions of law in plaintiff’s New York action were signed by an Official Referee November 5, 1952. No judgment has yet been entered.
*316On November 17,1952, the Special Term denied an application by defendant for permission “ to serve and file an answer to the complaint ”. Four days later, on November 21, 1952, an order to show cause was granted on this application of defendant for substantially the same relief, i.e., for an order opening his default and ‘ ‘ permitting him to serve and file his answer to the complaint.” That motion was granted January 5, 1953, and plaintiff appeals.
We consider that defendant’s default in the New York action was intentional and conceived as a legal stratagem. His explanation for the default is disingenuous, putting it in a very favorable light, and the conclusion is hard to escape that some of the assertions which defendant makes to gain the favor of the court to relieve him of default are false.
Defendant’s affidavit states that “ The reason why ” he “ did not appear in this action, serve an answer and contest the action is because ” he “ had already commenced ” an action in Washington for divorce. He states that he “ commenced ” the action “ On or about the 14th day of April, 1952 ” which would have been fifteen days before plaintiff’s action was commenced.
But the proof of service of the pleading in defendant’s Washington action for divorce against plaintiff, by the affidavit of the deputy sheriff who made that service, is that it was served on plaintiff by delivering it to plaintiff’s mother at Larchmont on July 24,1952 — over three months after defendant swears he commenced the action and long after he was in default in the present action. The facts stated in this affidavit are not controverted by defendant in the record before us and no explanation whatever is made by defendant in any further affidavit.
Defendant’s affidavit of November 19, 1952, which was the basis of the order to show cause bringing on this motion, omitted to disclose to the court that two days previously the Special Term had denied a motion for substantially the same relief; and the affidavit of an attorney associated with the law firm representing defendant, sworn to November 20th, and read in support of the order to show cause, contains the bland assertion that “ No previous application has been made for the relief herein sought.”
The court follows generally a liberal policy in relieving parties of defaults in matrimonial actions, but we think this kind of a record offers no acceptable ground for excusing defendant from a calculated default.
*317The order should be reversed and the motion denied, with $20 costs and disbursements.
Dobe, J. P., and Callahan, J., concur with Cohn, J.; Bebgan, J., dissents and votes to reverse, in opinion, in which Bbeitel, J., concurs.
Order affirmed. [See post, p. 835.]