Opinion
September 24, 1951.
In a separation action, plaintiff wife appeals from an order granting defendant husband's motion to dismiss the action for failure to prosecute. Order reversed on the law, with $10 costs and disbursements, and the motion denied, without costs, on condition that plaintiff notice the action for trial within ten days after payment to her, by the Sheriff of Bronx County, of the moneys collected by him from the defendant. In view of the conceded default of the husband in making payments of alimony and counsel fee, for which he was adjudged in contempt, it was an improvident exercise of discretion to dismiss the action unconditionally before plaintiff had received the moneys which defendant had been ordered to pay. Carswell, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.