Freund v. Burns , 268 A.D. 990 ( 1944 )

Appeal by plaintiff from an order modifying a judgment of divorce between the parties so as to give the sole custody of their two children to the defendant and deprive the plaintiff of all right of visitation. At the time the proceeding was begun the plaintiff was a resident of the State of Connecticut and the order to show cause seeking the modification was served upon her there. She appeared specially and moved to set aside the order to show cause on the ground that the court lacked jurisdiction. The motion was denied and no contest was made upon the merits. The appeal is from each and every part of the order. As the substantive relief granted to the defendant was on default, no appeal lies from that part of the order. The order, insofar as it overruled the plaintiff’s contention as to the jurisdiction of the court, is affirmed, with ten dollars costs and disbursements. (People ex rel. Ludden v. Winston, 34 Mise. 21, affd. 61 App. Div. 614; May v. May, 233 App. Div. 519; see decision in Freund v. Burns, ante, p. 989, decided herewith.) Insofar as the appeal is from the substantive part of the order, the appeal is dismissed, without costs, and without prejudice to an application by appellant to Special Term to open her default and permit her to contest the matter on the merits. Close, P. J., Cars-well, Johnston, Adel and Aldrich, JJ., concur.