I agree that power exists to open the matrimonial default but, in my opinion, the power should not be used in this case.
Defendant is a mature man holding a responsible position as civil engineer with the New York State Department of Commerce. I do not believe he was misled by any statement attributed to plaintiff or her attorney. Defendant was personally served with a certified copy of the interlocutory judgment on May 13,1954. He made some alimony payments pursuant to its terms and it was not until May 18, 1955 that he moved to set aside the judgment and open the default. I reach the conclusion that defendant merely changed his mind and now, for the first time, wishes to contest the action.
The default should not be opened under such circumstances and the order should be affirmed.
Bebgan, Hxlpern and Gibson, JJ., concur with Foster, P. J.; Zeller, J., dissents in memorandum.
Order reversed, and the motion to open the default herein granted, without costs. Any new application for a counsel fee and temporary alimony should be addressed to the Special Term.