Knott v. Knott — 39 N.Y.S. 804

Majority

p. 804

KNOTT v. KNOTT.

(Supreme Court, Appellate Division, First Department.

June 5, 1896.)

Headnote

1. Alimony—Enforcement—Striking Out Answer.

Where defendant in an action for divorce appeared before the court when the final order directing payment of alimony was made, but left the state after the granting of the order, so that it was not served on him, though he knew its contents, the court may strike out his answer for failure to pay such alimony.

2. Same—Striking Out Appearance. .

The court has no power to strike out the appearance of a defendant for failure to pay alimony.

Appeal from special term, New York county.

Action by Eleaner Knott against George W. Proctor Knott for divorce. From an order striking out defendant’s answer and appearance, defendant appeals.

Modified.

p. 805

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O’BRIEN, and INGRAHAM, JJ.

Percy L. Klock, for appellant.

William P. Burr, for respondent.

The defendant had notice of the motion for alimony, appeared before the referee before whom the question of fact upon the motion was heard, contested the right of the plaintiff to alimony, and appeared before the court when the final order directing the payment of alimony and counsel fees was made. He does not deny that he had notice of that order, and knew of its contents. Subsequent to the granting of the order, he left the state, and consequently the order was not served upon him. He has failed to comply with the order in any respect, or to pay anything to the plaintiff on account of the alimony and counsel fees directed by that order to be paid.

We think the court below had power to strike out the answer. Quigley v. Quigley, 45 Hun, 24 ; Walker v. Walker, 82 N. Y. 261 ; Brisbane v. Brisbane, 5 Civ. Proc. R. 352. The fact that, in consequence of the defendant’s refusal to comply with the order of the- court, sequestration proceedings were instituted and a receiver appointed, simply emphasizes the defendant’s contempt; and that those proceedings have been ineffectual is no reason any other proceedings should not be taken against the defendant to compel him to comply with the order of the court.

The court below had no authority to strike out the appearance of the defendant. The defendant had a right to appear in the action, so as to have notice of the subsequent proceedings.

The order should therefore be modified so as to provide that the answer interposed by the defendant be stricken out, and that the action proceed as if such answer had not been interposed, and, as so modified, affirmed, without costs to either party of this appeal.