39 N.Y.S. 804 | N.Y. App. Div. | 1896
The defendant had notice of the motion for alimony and a conn-, ■sel fee, appeared before the referee by whom the question of fact arising upon the motion was heard, contested the right of the plaintiff to alimony and a counsel fee, and appeared before the court when the final' order directing the payment of alimony and a counsel fee was made. He does not deny that he had notice of that order ■and knew of its contents. Subsequent to' the granting of the order he left the State, and consequently the order was not served upon him. He has failed to comply with the order in any respect, or to pay anything to the plaintiff on account of the alimony and counsel fee directed by that order to be paid.
We think.the court below had power to strike out the answer. . (Quigley v. Quigley, 45 Hun, 24; Walker v. Walker, 82 N. Y. 261; Brisbane v. Brisbane, 5 Civ. Proc. Rep. 352.)
. The fact that, in consequence of the defendant’s refusal to compiy with the order of the court, sequestration proceedings were instituted ■and a receiver appointed, simply emphasizes the defendant’s contempt, and that those proceedings have been ineffectual is no reason why any other proceedings should not be taken against the defendant to compel him to comply with the order of the court.
The order should, therefore, be modined so as to provide that the answer interposed -by the defendant be stricken out, and that the 'action proceed as if such answer had not been interposed, and as so modified affirmed, without costs to either narty of this appeal.
Present—Van Brunt, P. J., Barrett, Rumsey, O’Brien and Ingraham, JJ.
Order modified so as to provide that the answer interposed by tne defendant be stricken out, and that the action proceed as if such answer had not been interposed, and as so modified affirmed, without costs of appeal to either party.