148 N.Y.S. 24 | N.Y. App. Div. | 1914
This is an action for a divorce. The defendant denied the charges of misconduct against her and counterclaimed for a divorce. The issues with respect to the adultery charged in the complaint and in the counterclaim were framed and tried in Part 2 of the Trial Term on the 9th day of December, 1913, and resulted in all of the charges being answered in the negative by a verdict directed by the court. On the 9th of July, 1913, the court ordered the plaintiff to pay the defendant $1,500 for counsel fees and $250 per month pending the action, and the order was duly personally served on him on the eighteenth day of the same month. The plaintiff failed to pay the counsel fees and alimony, and on the 9th of January, 1914, an order was entered sequestering his property and appointing a receiver who qualified but was unable to collect any part of the amount so ordered to be paid by the plaintiff. Plaintiff appealed from the order for sequestration and appointing a receiver; but the order was affirmed by this court on the 30th of January, 1914. (160 App. Div. 932.) After the trial of the framed issues and on the 6th day of February, 1914, this cause appeared on the call calendar by its Special Term calendar number and was ordered onto the day calendar for February 13, 1914, whereupon defendant presented proof by affidavit tending to show that plaintiff was in contempt for failure to pay counsel fees and accrued alimony amounting to $3,270 and had left the
Counsel for the respondent contends that the order was unnecessary to authorize the entry of judgment, and that, therefore, the appeal should be dismissed. The appeal has been regularly brought on for argument without any motion to dismiss it, and in the circumstances we think it should be entertained, as evidently the learned justice presiding at Special Term contemplated withholding the entry of the judgment as resettled pending the appeal or vacating the judgment in the event that this court should decide that the plaintiff is not now entitled to have judgment entered. It appears that the alimony and counsel fees due and unpaid at the time the plaintiff
The defendant was entitled to a stay of plaintiff’s proceedings for the non-payment of costs; but there is a question as to whether or not she has not waived her right to a stay on that ground, and we do not deem it necessary to decide that point. Although the plaintiff has not been formally adjudged guilty of contempt of court, it is manifest that he is in contempt of court, and it is a reasonable inference that he had fled the jurisdiction of the court. In such circumstances he is of course entitled' to be heard in his defense on any motion made or step that may be taken in the action, but he is not entitled to make any affirmative move or to take any step in his own right (Fennessy v. Fennessy, 111 App. Div. 181; Harney v. Harney, 110 id. 20), and he should not he permitted to enter judgment upon the verdict of the jury until he has paid the counsel fees and accrued alimony. It is contended that the appellant waived her right to object to the entry of judgment by con-
We are of opinion, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, but with leave to plaintiff to renew on payment of the counsel fees and all accrued alimony.
Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to plaintiff to renew on payment of counsel fees and all accrued alimony.