Opinion
December 5, 1949.
In an action for judgment of separation, order granting temporary alimony and counsel fee reversed on the law and the facts, without costs, and matter remitted to Special Term in order that a hearing may be had by the Justice there presiding, or by an official referee to whom the matter may be referred, to determine the question of fact as to whether defendant at the time of service of process was a resident of this State. That issue should not be determined on affidavits, especially where, as here, a demand for a hearing is made respecting the same. Recourse should be had to the usual practice of seeing and hearing the witnesses that the parties may produce, with opportunity for cross-examination. ( Weinstein Sons v. Glen Head Iron Works, 236 App. Div. 698; Dege v. Mascot Realty Corp., 243 App. Div. 546; Guilford v. Brody, 237 App. Div. 726; Nielsen v. Fleischner, 246 App. Div. 743; Allen v. Betterly, 258 App. Div. 907.) Nolan, P.J., Carswell, Adel, Sneed and Wenzel, JJ., concur.