Opinion
October 7, 1958
Whether the defendant was a resident of the State of New York when the action was commenced presents an issue which cannot be determined upon the papers submitted. Under the circumstances that issue should be determined by a reference (Civ. Prac. Act, § 237-a, subd. 3, par. [b]). The plaintiff's motion for alimony and counsel fees is stayed until 10 days after the determination by the Official Referee (Civ. Prac. Act, § 237-a, subd. 5). The order at Special Term is therefore modified to the extent indicated and, as so modified, affirmed, on the facts and on the law and in the exercise of discretion, without costs. Settle order.
Concur — Rabin, J.P., M.M. Frank, Valente, McNally and Stevens, JJ.