Hayes v. Hayes — 141 A.D. 35

Majority

p. 35

Catherine Hayes, Respondent, v. Edmond J. Hayes, Appellant.

Second Department,

November 18, 1910.

Headnote

Appeal from order denying adjournment — action for divorce — application for counsél fees denied.

A wife suing for divorce whose action has been dismissed is not entitled to counsel fees to enable her to appeal from an order denying a motion for an adjournment, as such order is not appealable;

Appeal by the defendant, Edmond J. Hayes, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 15th day of April, 1910.

John F. Harrington, for the appellant.

Ely Rosenberg, for the respondent.

The action is for divorce. The plaintiff moved for a counsel fee ' to - prosecute .an appeal taken, from an. order denying -the motion, for am adjournment,- «“ upon which a, judgment, of.. dismissal .wag, rendered against ” her, and for alimony during .the said appeal,. , The - ■ Special. Term made...an,.order, that allows a counsel fee,.and .the defendant appeals.,, But tlie order of which the. plaintiff complains' hut, .denies, her .ipo,tioR,,:made¡ at.. Special Term for an,-adjournment. S.u.ch an order.’is, not appealable. (Nichols, N. Y. Pr. 3634 and references.) •,It may,he. that the. plaintiff. has,, a, grievance,,.but .she '• has- mistaken .the practice,, and is not entitled., to, .an allowance ..to enable.her ito:purs.n.e.her erroneous course. ■ , ..

The order must be reversed, and the. motion, must be denied. ,

Hirsohbeeg, P. J.j Woodward, Burr and Thomas, JJ., concurred,

Order reversed and motion denied.