In re Dyer

Appellate Division of the Supreme Court of New York

In re Dyer

4 A.D.2d 950, 167 N.Y.S.2d 629, 1957 N.Y. App. Div. LEXIS 4108

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 4, 1957

StatusPublished

This text of 4 A.D.2d 950 (In re Dyer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Dyer, 4 A.D.2d 950, 167 N.Y.S.2d 629, 1957 N.Y. App. Div. LEXIS 4108 (N.Y. Ct. App. 1957).

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Opinion

In a habeas corpus proceeding to obtain the custody and control of two infant children of the parties, the appeal is (1) from an order dated November 1, 1955, dismissing the writ without prejudice to any other proceeding appellant may wish to institute, and (2) from so much or an order dated September 1, 1955 as granted respondent a counsel fee. Order dated November 1, 1955 reversed, without costs, a new hearing granted, and respondent directed to make return to the writ upon five days’ notice. Order dated September 1,1955, insofar as appealed from, reversed, without costs, and motion denied. No sufficient ground is shown for the dismissal of the writ without a hearing on the merits. The learned Justice at Special Term, recognizing that there is no authority to award counsel fees in a habeas corpus proceeding, treated the motion as having been made to modify a judgment entered in 1946 separating respondent from appellant. However, respondent had obtained a judgment of divorce in Arkansas in 1949 and, consequently, counsel fees could not be awarded in the separation action. (Marshall v. Marshall, 280 App. Div. 814, affd. 304 N. Y. 956; Marshall v. Marshall, 281 App. Div. 976.) Nolan, P. J., Beldock, Ughetta and Kleinfeld, JJ, concur; Hallinan, J., not voting.

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In a habeas corpus proceeding to obtain the custody and control of two infant children of the parties, the appeal is (1) from an order dated November 1, 1955, dismissing the writ without prejudice to any other proceeding appellant may wish to institute, and (2) from so much or an order dated September 1, 1955 as granted respondent a counsel fee. Order dated November 1, 1955 reversed, without costs, a new hearing granted, and respondent directed to make return to the writ upon five days’ notice. Order dated September 1,1955, insofar as appealed from, reversed, without costs, and motion denied. No sufficient ground is shown for the dismissal of the writ without a hearing on the merits. The learned Justice at Special Term, recognizing that there is no authority to award counsel fees in a habeas corpus proceeding, treated the motion as having been made to modify a judgment entered in 1946 separating respondent from appellant. However, respondent had obtained a judgment of divorce in Arkansas in 1949 and, consequently, counsel fees could not be awarded in the separation action. (Marshall v. Marshall, 280 App. Div. 814, affd. 304 N. Y. 956; Marshall v. Marshall, 281 App. Div. 976.) Nolan, P. J., Beldock, Ughetta and Kleinfeld, JJ, concur; Hallinan, J., not voting.

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Bluebook (online)

4 A.D.2d 950, 167 N.Y.S.2d 629, 1957 N.Y. App. Div. LEXIS 4108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dyer-nyappdiv-1957.

Opinion

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