Silverman v. Silverman

261 A.D. 1106, 27 N.Y.S.2d 11, 1941 N.Y. App. Div. LEXIS 8987

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 1941
• Status: Published

Opinion

In an action for separation, defendant, on March 3, 1941, was personally served with the summons and complaint, together with a notice of motion and affidavits in support of plaintiff’s motion for temporary alimony and counsel fee. The motion was returnable on March 10, 1941, when defendant appeared specially and opposed the application on the sole ground that the court did not acquire jurisdiction of the defendant in that he did not receive adequate and timely notice of the application, as required by rule 60 of the Rules of Civil Practice. The Special Term “ of its own instance ” adjourned the motion to March 12, 1941, and on the adjourned date defendant renewed his motion to dismiss on the ground originally advanced. Defendant’s motion was denied and plaintiff’s motion granted. Order reversed on the law and the facts, without costs, defendant’s motion to dismiss granted, without costs, and plaintiff’s motion for alimony and counsel fee denied, without costs and without prejudice to a renewal of her application. It is conceded that plaintiff gave defendant only seven instead of eight days’ notice of her application for alimony and counsel fee. This did not comply with rule 60 of the Rules of Civil Practice, and, therefore, the Special Term did not acquire jurisdiction and the order was void. (Palmer v. Rotary Realty Co., Inc., 233 App. Div. 764.) Lazansky, P. J., Carswell, Johnston, Adel and Taylor, JJ., concur.