Opinion
October 31, 1949.
In an action by husband against wife to dissolve a marriage under the provisions of subdivision 5 of section 7 Dom. Rel. of the Domestic Relations Law, a special guardian ad litem was appointed to protect the interests of the defendant. This appeal is by defendant from an order denying her motion for a counsel fee for an attorney of her own choosing, for an allowance to pay one medical expert to be retained on her behalf, and for a jury trial on framed issues. Order reversed on the law and the facts, without costs, motion granted to the extent of directing a jury trial on the issues whether defendant has been incurably insane for a period of five years, and whether she is now so insane, and the balance of the motion granted, but remitted to Special Term to fix the amount of counsel fee, and the amount to be paid for one medical expert to be retained on defendant's behalf. Defendant is entitled to appeal in this action by an attorney of her own choosing, and to a counsel fee for the said attorney, even though a special guardian ad litem previously had been appointed for her. ( Cohen v. Cohen, 262 App. Div. 765, revd. on other grounds, 289 N.Y. 145). Defendant is entitled, as of right, to a trial by jury of the issues of fact in this action. In our opinion, the provisions of section 1142 of the Civil Practice Act apply to all types of annulment actions mentioned in article 67 of the Civil Practice Act, the particular type here involved being specifically mentioned in section 1137 of the Civil Practice Act. Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.