It is clear that the default in this case was not inadvertent. However, defendant claims that she was misled by the legal advice she received. In view of the fact that this action would finally determine the matrimonial status of the parties it should not be disposed of on default. We feel therefore that the default should be opened ( Steele v. Steele, 3 A.D.2d 826; Vanderhorst v. Vanderhorst, 282 App. Div. 312). This relief will be granted only on condition that defendant will submit the question of custody of the child to the jurisdiction of this court and will bring the child before the court for that purpose. Order reversed and motion to vacate default granted, without costs. Settle order.
Concur — Peck, P.J., Rabin, Frank, Valente and McNally, JJ.