Boller v. Boller — 96 A.D. 163

Majority

p. 163

William N. Boller, Respondent, v. Naomi S. Boller, Appellant.

Headnote

Divorce — trial of issues before a jury — interlocutoiy judgment on default after the case has been put on the Special Term calendar—notice must be given of the application therefoi' -- a decision must be filed.

Where, after the trial before a jury of certain issues of fact arising in a divorce action, the case is placed upon the Special Term calendar for trial,, and the defendant fails to appear at the trial, the plaintiff cannot enter an interlocutory judgment without giving the defendant notice of the application therefor. (Code Civ. Proc. § 1225; Gen. Rules Pr. rule 76.)

In such a case a decision must also be filed before the interlocutory judgment can be entered.

Appeal by the defendant, Naomi S. Boiler, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of April, 1904, denying the defendant’s motion to vacate and set aside an interlocutory judgment of divorce theretofore entered in the above-entitled action.

George A. Stearns, for the appellant.

B. W. B. Brown, for the respondent.

This action was brought to recover a judgment of divorce. Certain issues were tried before a jury and thereafter the cause was placed upon the Special Term calendar, Part 3, for trial.

p. 164

At the trial the defendant did not appear and thereupon the plaintiff’s counsel moved,, upon the summons, complaint, notice of appearance and answer of the defendant, the order directing the trial by jury of the issues, the verdict-of the jury and the minutes of the clerk of the part where the jury trial had taken place for an interlocutory judgment. The motion was granted, notwithstanding the fact that no notice of such application had been given (Code Civ. Proc. § 1225; Gen. Pules Pr. rule 37) and that plaintiff under rule 76 of the General Pules of Practice was not entitled to a judgment by reason of defendant’s default. The defendant’s attorney thereafter obtained an order to show cause why the interlocutory, judgment should not be vacated upon the ground,-among others, that notice of the application for judgment was not served upon him. Upon the return of the order to show cause the application to vacate was denied and the defendant has appealed.

We think this order should be reversed. Under the facts set out in the moving papers, none of which are denied, the defendant’s attorney was entitled to notice of the application for judgment, and such'notice not having been given, the judgment should have been vacated.

It does not appear that any decision was ever made, and if this be true, that is also fatal to the judgment. (Reynolds v. AEtna Life Ins. Co., 6. App. Div. 254; Hall v. Beston, 13 id. 116 ; McManus v. Palmer, Id. 443.)

The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Present—Van Brunt, P. J., Patterson, O’Brien, McLaughlin and Hatch, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.