Barry v. Glynn

29 A.D.2d 927, 289 N.Y.S.2d 267, 1968 N.Y. App. Div. LEXIS 4219

Opinion

Order, entered December 13, 1967, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs or disbursements, motion of respondent to vacate default granted and prior order of November 17, 1967 vacated. (CPLR 2221, 5015, see 5 Weinstein-IÍorn-Miller, N. Y. Civ. Prac., par. 5015.12; vol. 7, par. 5511.10.) The order of November 17, 1967, effected an award of custody to the petitioner of the parties’ 10-year-old daughter “ without the benefit of full hearing.” Upon remand, the Supreme Court, Bronx County, should exercise its discretion as to whether it would be appropriate to transfer the proceeding to the Family Court, Bronx County (N. Y. Const., art. VI, § 19, subd. a; Family Ct. Act, § 115, subd. [b]; Kagen v. Kagen, 21 N Y 2d 532). Appeal from order entered November 17, 1967, dismissed, without costs or disbursements, since no appeal lies from an order entered upon default (CPLR 5511). Concur — Stevens, J. P., Steuer, Tilzer, McGivern and Rabin, JJ.