135 N.Y.S. 289 | N.Y. App. Div. | 1912
Plaintiff brought this action for separation on the ground of cruel and inhuman treatment. Defendant answered and interposed a counterclaim demanding a judgment of separation in her favor upon the ground of abandonment and cruel and inhuman treatment. Upon the trial plaintiff defaulted, and judgment was given in favor of defendant upon the cause of action set up by her as, a counterclaim. This judgment was granted April 12, 1911. Pending the action, and on January 4, 1911, an order was made directing payment by plaintiff to defendant of a counsel fee of seventy-five dollars and alimony
Two interesting questions have been presented by the learned counsel for the appellant: First, whether the service of a certified copy of the order and of the final judgment without this State was sufficient personal service upon the plaintiff to justify instituting proceedings for contempt; and, second, whether, if such was the case, service of the order to show cause upon the attorney who appeared for him in the action pursuant to the express direction of the court was sufficient service to confer jurisdiction.
It seems to us unnecessary to determine either of these questions, as to one of which at least there is a decided conflict of opinion. It affirmatively appears that the only remedy under the circumstances which the defendant could ask would be the imposition of a fine and the committing of plaintiff to custody until the further order of - the court. But the court will not do a futile thing. “ Inasmuch as after the commencement of the action he had gone out of the jurisdiction it would not have availed to order him fined and committed.” (Brinkley v. Brinkley, 47 N. Y. 40, on p. 49.) Under the circumstances,
Hirschberg, Thomas, Carr and Woodward, JJ., concurred.
Order affirmed, without costs.