Opinion
March 24, 1980
In a matrimonial action, the defendant husband appeals from so much of a judgment of divorce of the Supreme Court, Suffolk County, entered November 27, 1978, as directed him to pay alimony of $50 per week and a counsel fee of $750. Judgment reversed insofar as appealed from, on the law, without costs or disbursements, the alimony and counsel fee provisions are deleted therefrom, and the action is remitted to Special Term for a hearing on the question of whether defendant should be required to pay alimony and a counsel fee. The condition attached to the order vacating appellant's default constituted a burden tantamount to a deprivation of defendant's right to litigate the issue of whether he should be required to pay alimony and a counsel fee (cf. Montgomery Coal Oil Co. v. Fuss, 35 A.D.2d 817). Hopkins, J.P., Damiani, Titone and Mangano, JJ., concur.