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Haskell v. Haskell

6 N.Y.2d 79 Court N.Y. Decision date 1959-05-28 English

Delivered by Froessel, J.

Contents

Majority

p. 79
Marilyn B. Haskell, an Infant, by Celia Alberts, Her Guardian ad Litem, Respondent, v. Jerome J. Haskell, Appellant.
Argued April 7, 1959;
decided May 28, 1959.
p. 80
I. Stanley Stein for appellant.
I. It was beyond the jurisdiction of Special Term to make the order appealed from, without service of the show cause order and the papers upon which it was based, upon the husband. II. Frederick E. M. Ballon was not the “ other person ”, specified in the statute, authorized to be served with notice. (Matter of Stradar v. Stern Bros., 184 App. Div. 700 ; Rosenthal v. Rosenthal, 201 App. Div. 27 ; Karpf v. Karpf, 260 App. Div. 701 ; Keller v. Keller, 100 App. Div. 325 ; Wulff v. Wulff, 74 Misc. 213 , 151 App. Div. 22 ; Thayer v. Thayer, 145 App. Div. 268 ; Griffin v. Griffin, 327 U. S. 220 ; Massimino v. Massimino, 5 Misc 2d 1041 .) 111. There was no default on the part of appellant.
Irving 1. Erdheim for respondent.
1. Due notice requirements of section 1171-b of the Civil Practice Act are satisfied,
p. 81
if husband is afforded ample opportunity to oppose application seeking judgment for arrears of support, by receipt of timely notification thereof from husband’s purported former attorney. (Massimino v. Massimino, 5 Misc 2d 1041 ; Rosenthal v. Rosenthal, 201 App. Div. 27 ; Karpf v. Karpf, 260 App. Div. 701 ; Keller v. Keller, 100 App. Div. 325 ; Wulff v. Wulff, 74 Misc. 213 , 151 App. Div. 22 .) II. A default order is not appealable as a matter of law. (La Londe v. La Londe, 274 App. Div. 970 ; People v. Robbins, 277 App. Div. 1087 .)

Several years after the entry of a judgment in plaintiff’s favor in an annulment action awarding the sum of $30 per week for the support of the son of the parties, she procured an order directing the entry of a judgment for arrears. The order to show cause on the application for such latter judgment provided for service upon the defendant, a resident of Connecticut, or his attorney.

Service was effected on the defendant’s attorney of record in the annulment action. Said attorney did not move under the provisions of section 237-a of the Civil Practice Act but merely submitted an affidavit “ in partial opposition ”, urging that he no longer represented defendant, that he had no authority to appear on defendant’s behalf, and asked to “ be permitted to return the aforesaid moving papers and be relieved of all further responsibility in connection therewith ”. He thereupon communicated with defendant by mail advising him of the order to show cause, its purpose and the return day, and suggested the latter contact the attorney’s office “ by telephone ”.

After an adverse decision and before the entry of an order thereon, said attorney moved for reargument. While that application was under consideration, another attorney, who had represented defendant just a few months previously in another matter relating to the custody of the child of the parties, appeared in the Justice’s chambers in relation to the motion for reargument under the guise of being from the first attorney’s office.

Under all the facts and circumstances of this cáse, Special Term was authorized to find that defendant was duly represented by counsel. For present purposes, an application under section 1171-b of the Civil Practice Act is treated as a motion in an action (see Karlin v. Karlin, 280 N. Y. 32 , 36; Fox v. Fox,

p. 82
263 N. Y. 68 , 70; Lund v. Lund, 196 Misc. 136 , 137-138), so that no service of new process was necessary for the purpose of acquiring jurisdiction over defendant’s person (Durlacher v. Durlacher, 173 Misc. 329 , 331-333; see Karpf v. Karpf, 260 App. Div. 701 , 703-704; see, also, Ohlquist v. Nordstrom, 143 Misc. 502 , 503-504, affd. 238 App. Div. 766 , affd. 262 N. Y. 696 ; Griffin v. Griffin, 327 U. S. 220 ).

The judgment should be affirmed, with costs.

Chief Judge Conway and Judges Desmond, Dye, Fuld, Van Voorhis and Burke concur; Judges Fuld and Van Voorhis, in concurring, would grant leave to defendant, as did the Appellate Division, to apply at Special Term to move for leave to interpose any defense thereto that he may have upon the merits.

Judgment affirmed.

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