Fishbach v. Fishbach , 4 Misc. 2d 760 ( 1957 )

Matthew M. Levy, J.

This is a motion by plaintiff for an order to direct the entry of a judgment for the amount of arrears in alimony. Defendant is in default of payments of alimony and counsel fees awarded by a matrimonial judgment of this court. In pursuance of a prior application a money judgment had been entered for arrears up to July 23, 1956; the instant motion requests judgment to October 22, 1956.

This motion is bottomed upon a mere notice, served by mail addressed to defendant in Florida. Section 1171-b of the Civil Practice Act requires that “ The application for such order shall be upon such notice to the husband * * * as the court may direct.” This language would seem to indicate that an order to show cause is required in which the court would be able to direct the type of notice to be given. The prior motion was also brought on by notice of motion. However, there, defendant appeared and contested. Here, there has been no personal service upon or appearance by defendant.

Accordingly, the motion is denied, without prejudice to renewal upon due compliance with section 1171-b (supra).