La Londe v. La Londe , 274 A.D. 970 ( 1948 )

Judgment, so far as appealed from, affirmed, with costs. All concur, except Vaughan and Kimball, JJ., who dissent and vote for dismissal of the appeal in the following memorandum: The only question presented by this appeal is the amount of alimony awarded plaintiff. The court granted an absolute divorce in favor of the wife, awarded custody of the two infant children to her and directed appellant to pay to plaintiff a sum of $50 a week for support and maintenance. Following service of the summons and complaint, the defendant interposed an answer and appeared on the trial by counsel who cross-examined plaintiff’s witnesses for the purpose of assisting the court in determining the amount of permanent alimony to be awarded. At the close of the plaintiff’s case, the defendant’s attorney, upon written authorization of his client, withdrew the answer. A judgment was thereafter entered against the defendant as above, indicated. No appeal lies from such a judgment. (Civ. Prac. Act, § 557, subd. 1; Goldsmith v. Goldsmith, 11 N. Y. Week. Dig. 551.) Having permitted a default judgment to be entered by withdrawal of his answer, defendant’s sole remedy is to move to open the default (White v. Sebring, 228 App. Div. 413), or if a showing can be made disclosing a changed financial condition on the part of the husband, to move for modification of the judgment insofar as it relates to the amount of alimony awarded. (Civ. Prac. Act, § 1170.) (The portion of the judgment appealed from awards alimony and custody of children in a divorce action.) Present — Taylor, P. J., McCurn, Larkin,

Vaughan and Kimball, JJ.