Opinion
November 2, 1961
In an action by a husband for a divorce based upon the defendant wife's adultery with one Joseph Felice, in which the wife counterclaimed for a separation, and in which plaintiff and defendant have both cross-appealed from different portions of the judgment, the corespondent moves: (a) to dismiss so much of the plaintiff's appeal as is taken from so much of the judgment rendered after trial as dismissed the complaint for divorce, awarded custody of the children to the defendant and directed a reference to determine the amount of the alimony to be paid by plaintiff to defendant; and (b) to vacate two orders of this court, dated respectively June 8, 1961 and September 18, 1961, which granted to plaintiff a stay of the hearings before the Referee on condition that he perfect his appeal for the November Term of this court, and which permitted both appeals to be prosecuted on the original papers and on printed briefs. The motion is made by the corespondent on the ground that, while he was a party to the action, appeared therein and participated in the trial, plaintiff omitted to serve him with his notice of appeal and to make him a party respondent on plaintiff's appeal. Such omission is not denied. The motion of the corespondent is denied. On the court's own motion, since the plaintidf duly filed his notice of appeal in the office of the County Clerk, his omission in serving a copy upon the corespondent is excused (Civ. Prac. Act, § 107), on condition that, within 10 days after entry of the order hereon, plaintiff shall make the corespondent a respondent on his (plaintiff's) appeal by serving upon him a copy of his (plaintiff's) notice of appeal. The corespondent, as a party respondent on plaintiff's appeal, may file sic copies of a typewritten brief and serve one copy on the plaintiff and the defendant within 20 days after plaintiff shall have served one copy of his appellant's brief upon him. Both appeals are ordered on the calendar for the January 1962 Term, instead of the November 1961 Term; the stay heretofore granted to plaintiff is continued pending appeal; the respective briefs of the plaintiff and the defendant as appellants shall be served and filed on or before December 4, 1961; and their briefs as respondents shall be served and filed within 20 days thereafter. Nolan, P.J., Beldock, Christ, Pette and Brennan, JJ., concur.