In re Jaclyn L. , 52 A.D.2d 847 ( 1976 )

In a proceeding pursuant to article 7 of the Domestic Relations Law, in which an order of adoption was made, on default, in the Family Court, Queens County, on January 28, 1975, upon the petition of the natural mother and her second husband, the infant’s natural father appeals from (1) the said order of adoption and (2) a further order of the same court, dated May 5, 1975, which denied his motion (a) to open his default and vacate the order of adoption and (b) to set the matter down for a hearing on the issue of abandonment. Appeal from the order dated January 28, 1975 dismissed, without costs or disbursements. No appeal lies from an order entered upon default. Order dated May 5, 1975 reversed, without costs or disbursements, motion granted, and proceeding remitted to the Family Court for a hearing, which is to be held forthwith. Appellant’s attorney was about a half hour late for the hearing at which the order of adoption was made. Counsel immediately attempted to have a second hearing scheduled, at which the divorced father of the infant could prove that he had not abandoned his child. At the hearing on his motion to open the default and to vacate the order of adoption, counsel set before the Family Court the basis upon which he intended to establish nonabandonment and the reasons for the default. Based thereon, it was an abuse of discretion to have denied the motion. Gulotta, P. J., Hopkins, Latham, Margett and Shapiro, JJ., concur.