Shepard v. Shepard

Order denying the motion to set aside service of the summons and the motion for temporary alimony and counsel fees is affirmed, as is the order denying the motion to vacate the sequestration order. The denial of the motion to vacate the sequestration order was on condition that plaintiff notice the ease for trial for the September, 1957 Term and proceed as expeditiously as possible to trial. The order granting the motion for temporary alimony and counsel fees is reversed. Said motion is remanded and referred to the calendar of the Family Part, with leave to the defendant to file answering affidavits within 10 days after service of a copy of the order to be made herein with notice of entry, with the direction that the application for temporary alimony and counsel fees be considered de novo. Subdivision 5 of section 237-a of the Civil Practice Act provides for an automatic stay of proceedings in an action, where, as here, defendant makes timely objection to the court’s jurisdiction over his person. In the circumstances, no decision for temporary alimony and counsel fees should have been made until 10 days after the service of a copy of the order denying the motion to set aside the service of the summons and the motion for temporary alimony and counsel fees. Costs to abide the event. Settle orders. Concur — Breitel, J. P., Botein, Frank, Valente and McNally, JJ.