Hayes v. Hayes — 125 N.Y.S. 652

Majority

p. 652

HAYES y. HAYES.

(Supreme Court, Appellate Division, Second Department.

November 18, 1910.)

Headnote

Divorce (§ 224*)—Actions—Decisions Review able — Motion fob Adjournment.

In an action for divorce, plaintiff’s motion for adjournment was overruled, and a judgment of dismissal granted. Hold that, as the order denying an adjournment was not appealable, an order allowing her counsel fees, etc., for the appeal, must be overruled.

[Ed. Note.—For other cases, see Divorce, Dec. Dig. § 224.*]

Action by Catharine Hayes against Edmond J. Hayes. From an order granting plaintiff counsel fees and an allowance pending an appeal from an order denying an adjournment, on which a judgment of dismissal was entered, defendant appeals.

Appeal from. Special Term, Kings County.

Reversed.

See, also, 138 App. Div. 925 , 123 N. Y. Supp. 1119 .

Argued before HIRSCHBERG, P. J., and WOODWARD,. JENKS, BURR, and THOMAS, JJ.

John F. Harrington, for appellant.

Ely Rosenberg, for 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 an adjournment, “upon which a judgment of dismissal was 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 the order of which the plaintiff complains but denies her motion,, made at trial term, for an adjournment. Such an order is not appeal-able. Nichols’ New York Practice, p. 3634, and references. It may be that the plaintiff has a grievance; but she has mistaken the practice, and is not entitled to an allowance to enable her to pursue her erroneous course.

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