135 N.Y.S. 225 | N.Y. App. Div. | 1912
The action, begun in July, 1906, was for divorce for adultery, and the complaint was dismissed for failure of the plaintiff to appear for trial on January 4, 1910. At that date there was pending a motion to punish the defendant for contempt in failing'to pay alimony pursuant to an order entered in July, 1906, and duly served on defendant. Although that motion was denied on April 3, 1911, it was according to permission renewed, and from an order dated July Y, 1911, adjudging' defendant in contempt for disobedience of the order directing the payment of alimony, the appeal is taken.
The appellant urges that the court had no power to grant
The order should be reversed, as a matter of law and not of discretion, and the motion denied, without costs.
Jenks, P. J., Carr and Woodward, JJ., concurred; Hirschberg, J., dissented.
Order reversed and motion denied, without costs, as a matter of law and -not of discretion.