249 A.D. 650 | N.Y. App. Div. | 1936
This action by plaintiff-husband, to procure a divorce, is pending in Putnam county. Subsequent to the commencement of this action the wife instituted an action for separation in New Tork county and applied for alimony and counsel fee. Thereafter plaintiff secured an order in this action staying and enjoining defendant (plaintiff in the separation action) from prosecuting or proceeding further with the separation action. Order, in so far as an appeal is taken therefrom, reversed upon the law, with ten dollars costs and disbursements, and motion to that extent denied, with ten dollars costs. The court was without power to make the order. A stay may be bad only by application to the Supreme Court in New Tork county, where the separation action is pending, or in an equity action where such relief is demanded in the complaint. (Tauszig v. Tauszig, 226 App. Div. 759; Municipal Metallic Bed Mfg. Corp. v. Dobbs, 228 id. 724.) Lazansky, P. J., Young, Johnston, Adel and Taylor, JJ., concur.