Fennessy v. Fennessy , 97 N.Y.S. 602 ( 1906 )

Laughlin, J.:

This is an action for divorce. On the-11th day - óf December, 1905, the court on the application of the defendant made gri order requiring the plaintiff to pay, one. hundred .dollars counsel fee and ten. dollars, per week alimony until the further-order of the court. The inotion for a preference was -based on. subdivision-13 of section 791 of the Code of Civil Procedure which authorizes a preference in an action for divorce wFen temporary, alimony has been allowed.' The opposing - affidavits show that the 'order of the court, which" was duly served on the attorney on. the twelfth day of December, hut could.not he served on plaintiff personally owing to his absence from the. State,, requiring the. payment - of counsel fees and alimony,, has. not been complied with. -

The preference was'designed for the protection'of husbands paying counsel fees or alimony by affording them a .speedy^ trial of the issues to, the end that, if innocent, they might be soon relieved from the order. This husband is attempting' to take advantage of it to avoid the paymént of counsel fees and' alimony. He should not be heard on any proceeding in -the action instituted by himself until he. complies with the order o.f the court requiring the payment .of counsel fees and alimony ; but of coursé he has a constitutional right to' be heard on any affirmative steps, taken by the defendant. (Sibley v. Sibley, 76 App. Div. 132.) When a counsel fee is awarded in this class of Cases the wife is entitled to have, it paid a reasonable time before the trial .to the ehd that she may have her case properly prepared. We are of'opinion that for that reason the motion should have been denied. - '

• It follows, therefore, .that the order should be reversed* with ten dollars costs and -disbursements, and the motion denied',, with ten dollars costs. , ' .

O’Bbien/P. J,, 'ÍngbahA$r,.Clabke and Houghton, J J'., concurred.

Order reversed, with ten dollars, costs, and disbursements, and' motion denied-, with ten dollars costs'. "