Gray v. Gray — 32 N.Y.S. 355

Majority

p. 355

(84 Hun, 347.)

GRAY v. GRAY.

(Supreme Court, Ceneral Term, Second Department.

February 11, 1895.)

Headnote

Pleading—Motion to Strike Out Answer—Disobedience of Order.

The power of the court to strike out an answer for disobedience of an order has not been abolished by the Code of Civil Procedure.

Appeal from special term, Kings county.

Action by Elizabeth A. Gray against James C. Gray for divorce. On February 6, 1894, an alternative order was entered requiring defendant, on or before February 15th, to pay alimony and counsel fees, as directed by a previous order, or have his answer stricken out. On February 16th an order was entered striking out defendant’s answer for failure to comply with the previous order. On May 26,1894, final judgment was entered in favor of plaintiff. From

said orders and judgment, defendant appeals.

Affirmed.

Argued before DYKMAN, PKATT, and CULLEN, JJ.

p. 356

Baldwin & Boston, for appellant.

Man & Man, for respondent.

The power to strike out an answer for disobedience of an order has not been abolished by the Code (Brisbane v. Brisbane, 34 Hun, 339 ), and in the present case was wisely exercised. The order to that effect will be affirmed.

An examination of the record on the appeal from the judgment shows that the plaintiff fully proved the cause alleged for dissolving the marriage. The only question upon which a doubt is possible is whether the plaintiff had acquired a domicile in New York prior to beginning her action. She had been in this state several months before the action was begun. She testified on the trial to her intention to fix her residence here, and the trial court credited her testimony. Her conduct before and after beginning the suit corroborated her testimony to such an extent that a finding against her on that point would have been error. The judgment is right, and is affirmed. All concur.