| N.Y. App. Div. | Apr 2, 1951
In this action by a wife for separation, in which defendant counterclaims for a divorce, plaintiff appeals from three orders: (1) an order, entered June 27, 1949, denying her temporary alimony and counsel fee; (2) an order, entered July 29, 1949, denying her motion to vacate a judgment dismissing her complaint for separation and granting the husband a divorce on his counterclaim, which judgment was entered upon her default in appearance at the trial; and (3) an order, entered September 3, 1949, denying her motion to resettle the order of July 29, 1949. Order entered June 27, 1949, reversed on the law and the facts, without costs, and the motion referred to the Trial Justice for determination. Order entered July 29, 1949, reversed on the law and the facts, without costs, motion to vacate the judgment granted, without costs, and the case restored to the calendar for trial. Under the circumstances of this case, plaintiff’s default in not appearing at the trial on June 24, 1949, was the result of an honest mistake. Appeal from order entered September 3, 1949, dismissed, without costs. The order is not appealable. Nolan, P. J., Carswell, Johnston, Sneed and Wenzel, JJ., concur.