Tarshish v. Tarshish

27 A.D.2d 909, 278 N.Y.S.2d 718, 1967 N.Y. App. Div. LEXIS 4462

Opinion

Order, entered May 17,1966, unanimously modified, on the law, without costs or disbursements to either party, to grant motion to the extent of striking from the complaint such part of the alleged cause of action and such part of the prayer for relief as seeks recovery of an in personam judgment against defendant for support and maintenance of the plaintiff and for counsel fees. In this action for a separation and for alimony and counsel fees, the plaintiff alleges that the defendant is a resident of Omaha in the State of Nebraska. Inasmuch as the service of the summons and complaint herein was made upon the defendant in the State of Nebraska, the court has not acquired in personam jurisdiction over the defendant. Although the matrimonial domicile of the parties was in this State and the plaintiff resides here, CPLR 302 is inapplicable to permit the court to exercise personal jurisdiction over the defendant. Of course, the court has in rem jurisdiction to grant a judgment of separation and may award alimony and counsel fees payable out of any property of defendant duly sequestered within the State. Concur — Eager, J. P., Steuer, Capozzoli, Rabin and McNally, JJ.