Estes v. Domestic Relations Court

New York Supreme Court

Estes v. Domestic Relations Court

190 Misc. 34, 74 N.Y.S.2d 439, 1947 N.Y. Misc. LEXIS 3258

DecidedNovember 7, 1947

StatusPublished

This text of 190 Misc. 34 (Estes v. Domestic Relations Court) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Estes v. Domestic Relations Court, 190 Misc. 34, 74 N.Y.S.2d 439, 1947 N.Y. Misc. LEXIS 3258 (N.Y. Super. Ct. 1947).

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Opinion

Pecora, J.

This is an application under article 78 of the Civil Practice Act to restrain the Domestic Relations Court of the City of New York, Family Court Division, of the County of The Bronx, a Justice of that court and officers thereof, from enforcing an order of that court directing the petitioner to contribute towards the support of an infant child. The relief is predicated upon an assertion that the Domestic Relations Court had no jurisdiction to enter the support order because petitioner is a nonresident and, further, that there is an action for separation pending in the Supreme Court, brought by the wife against him in which petitioner has counterclaimed for divorce. In the Domestic Relations Court, petitioner’s attorney [35]*35filed a general notice of appearance. Furthermore, petitioner’s attorney participated in the trial had in the Domestic Relations Court. That court was thereby given jurisdiction of the person of petitioner. Even though by his appearance in the proceeding petitioner attacked the jurisdiction of the court, it nevertheless constituted a general appearance. (Brainard v. Brainard, 272 App. Div. 575.) There is no question that there was jurisdiction of the subject matter. Since no order for alimony was entered in the separation action, there was jurisdiction to make an order for support. (N. Y. City Dom. Rel. Ct. Act, § 137, subd. 3; Matter of Curry v. Curry, 275 N. Y. 553; “Varney” v. “Varney”, 178 Misc. 165.) Finally, petitioner’s request for an order of prohibition will not be granted because petitioner had a remedy by way of appeal from the-order of the Domestic Relations Court (N. Y. City Dom. Rel. Ct. Act, § 58). (See Matter of Kohn v. Domestic Relations Court of City of N. Y., 244 App. Div. 829; Matter of Bergen v. Domestic Relations Court of City of N. Y., 269 App. Div. 944.) The motion is in all respects denied and the petition is dismissed. Settle order.

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Pecora, J.

This is an application under article 78 of the Civil Practice Act to restrain the Domestic Relations Court of the City of New York, Family Court Division, of the County of The Bronx, a Justice of that court and officers thereof, from enforcing an order of that court directing the petitioner to contribute towards the support of an infant child. The relief is predicated upon an assertion that the Domestic Relations Court had no jurisdiction to enter the support order because petitioner is a nonresident and, further, that there is an action for separation pending in the Supreme Court, brought by the wife against him in which petitioner has counterclaimed for divorce. In the Domestic Relations Court, petitioner’s attorney [35]*35filed a general notice of appearance. Furthermore, petitioner’s attorney participated in the trial had in the Domestic Relations Court. That court was thereby given jurisdiction of the person of petitioner. Even though by his appearance in the proceeding petitioner attacked the jurisdiction of the court, it nevertheless constituted a general appearance. (Brainard v. Brainard, 272 App. Div. 575.) There is no question that there was jurisdiction of the subject matter. Since no order for alimony was entered in the separation action, there was jurisdiction to make an order for support. (N. Y. City Dom. Rel. Ct. Act, § 137, subd. 3; Matter of Curry v. Curry, 275 N. Y. 553; “Varney” v. “Varney”, 178 Misc. 165.) Finally, petitioner’s request for an order of prohibition will not be granted because petitioner had a remedy by way of appeal from the-order of the Domestic Relations Court (N. Y. City Dom. Rel. Ct. Act, § 58). (See Matter of Kohn v. Domestic Relations Court of City of N. Y., 244 App. Div. 829; Matter of Bergen v. Domestic Relations Court of City of N. Y., 269 App. Div. 944.) The motion is in all respects denied and the petition is dismissed. Settle order.

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Bluebook (online)

190 Misc. 34, 74 N.Y.S.2d 439, 1947 N.Y. Misc. LEXIS 3258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estes-v-domestic-relations-court-nysupct-1947.

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