Opinion
February 9, 1906.
Alfred Beekmann, for the appellant.
MacDonald De Witt, for the respondent.
This is an action for divorce. On the 11th day of December, 1905, the court on the application of the defendant made an order requiring the plaintiff to pay one hundred dollars counsel fee and ten dollars per week alimony until the further order of the court. The motion for a preference was based on subdivision 13 of section 791 of the Code of Civil Procedure which authorizes a preference in an action for divorce when temporary alimony has been allowed. The opposing affidavits show that the order of the court, which was duly served on the attorney on the twelfth day of December, but could not be served on plaintiff personally owing to his absence from the State, requiring the payment of counsel fees and alimony, has not been complied with.
The preference was designed for the protection of husbands paying counsel fees or alimony by affording them a speedy trial of the issues to the end that, if innocent, they might be soon
relieved from the order. This husband is attempting to take advantage of it to avoid the payment of counsel fees and alimony. He should not be heard on any proceeding in the action instituted by himself until he complies with the order of the court requiring the payment of counsel fees and alimony; but of course he has a constitutional right to be heard on any affirmative steps taken by the defendant. ( Sibley v. Sibley, 76 App. Div. 132.) When a counsel fee is awarded in this class of cases the wife is entitled to have it paid a reasonable time before the trial to the end that she may have her case properly prepared. We are of opinion that for that reason the motion should have been denied.
It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
O'BRIEN, P.J., INGRAHAM, CLARKE and HOUGHTON, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.