Opinion
October 26, 1948.
Present — Dore, J.P., Cohn, Callahan, Van Voorhis and Shientag, JJ.
The order appealed from is modified by striking out the provision for the appointment of the private referee and remitting the cause to Special Term to take proof before the court, defendant appearing specially, on the issue of defendant's residence at the time of service. If the court determines that defendant was a resident of the State at the time of service, the issue regarding the amount of alimony shall also be determined by Special Term on the merits after a hearing at which both parties will be afforded the opportunity to be present. The motion to confirm the report of the official referee should be held in abeyance pending determination by Special Term of the issues remitted to Special Term.
I concur in the result only because defendant has not raised the question of the jurisdiction of the court under section 235 of the Civil Practice Act to award a judgment in personam for alimony against a resident of this State, served outside the State. (See Eleventh Annual Report of N.Y. Judicial Council, p. 198; Twelfth Annual Report of N.Y. Judicial Council, p. 58; Jurisdiction — Personal Service Outside State on Resident, 23 N YU.L.Q. Rev. 340.) Settle order on one day's notice.