Kerr v. Kerr

6 A.D.2d 807, 175 N.Y.S.2d 240, 1958 N.Y. App. Div. LEXIS 5638

Opinion

In an action by a husband to annul a marriage in which his wife interposed a counterclaim for a separation, the appeal is from an order denying his motion to open his default and to set aside the default judgment entered June 3, 1957 which dismissed his complaint and granted a separation on the counterclaim. Order reversed, without costs, and motion granted, on condition that appellant shall within 30 days after the service of a copy of the order hereon satisfy the judgment, entered April 17, 1957, in the amount of $2,450 for arrears of temporary alimony and counsel fees; otherwise order affirmed, without costs. Under the liberal policy of vacating defaults in matrimonial actions, the circumstances which gave rise to this default judgment justify the granting of appellant’s motion to open his default. (Vanderhorst v. Vanderhorst, 282 App. Div. 312; Quaid v. Quaid, 2 A D 2d 768.) However, in view Of appellant’s failure to comply with the order directing the payment of temporary alimony and counsel fees, we deem it necessary to impose the above-mentioned condition. Furthermore, as considerable time has elapsed since the entry of the judgment for arrears of temporary alimony and counsel fees during which time additional alimony has accrued and is unpaid, this determination is without prejudice to any application by respondent, if she be so advised, with respect thereto, and without prejudice to a cross motion by appellant, if he be so advised, to vacate or modify the order fixing the alimony for such subsequent period. The application, if made, should be made promptly. Nolan, P. J., Wenzel, Beldoek, Hallinan and Kleinfeld, JJ., concur.