Thurston v. Thurston ( 1911 )

GIEGERICH, J.

[1] So far as the motion to direct payment of the arrears of temporary alimony is concerned, it must be denied, because such order was superseded by the final judgment, which in this case denied relief to both parties because each of them was found guilty of adultery. Wood v. Wood, 7 Lans. 204; 14 Cyc. 760; 3 Enc. L. & P. 138, 139.

[2] The other branch of the motion, for a counsel fee • and disbursements upon the appeal taken by the plaintiff, must be denied, in consequence of the granting of the motion to modify the final judgment by striking out the provisions for the payment by the plaintiff of the costs of the action, which has the effect of rendering null and void the notice of appeal heretofore served by the plaintiff. Smith v. Evans, 1 Abb. N. C. 396; 4 Nichols, New York Practice, § 2608, p. 3694. As a new notice of appeal is necessary (4 Nichols, New York Practice, § 2608, p. 3694), the motion for a counsel fee and expenses may be renewed when such new notice of appeal is served.

Motion disposed of as indicated, without costs. Settle order on notice.

[3] The directions„contained in the final judgment for the payment by the plaintiff of the costs of the action were made through inadvertence, and the final judgment should be modified by striking out the same. No papers in opposition to the motion to modify the judgment in this respect, have been submitted.

Motion granted. No costs.