Opinion
October, 1929.
Order reversed upon the law, without costs, and motion denied, without costs. The court was without power to enter a personal judgment against the defendant in this action directing the payment of alimony; that provision in the judgment is, therefore, void, and the defendant cannot be punished for contempt for failure to comply therewith. Nor did defendant's appearance on the motion constitute a general appearance in the action. ( Robinson v. Robinson, 123 Misc. 80.) The recitals in the order for publication of the summons show that the order was not for substituted service upon a resident defendant, it having been based upon affidavits showing that plaintiff was unable to ascertain whether defendant was or was not a resident of the State, and, therefore, asked for an order for service by publication under subdivision 1 of section 232 of the Civil Practice Act. Furthermore, an order for substituted service may not be had in matrimonial actions. ( Purvis v. Purvis, 167 App. Div. 717.) Lazansky, P.J., Rich, Young, Seeger and Scudder, JJ., concur.