Eleanor Knott, Respondent, v. George W. Proctor Knott, Appellant

Eleanor Knott, Respondent, v. George W. Proctor Knott, Appellant. Divorce—failure 'of a defendant having knowledge of , hut not served with, the order directing him to do so, to pay alimony — the answer may he stricken out. Where, in an action brought by a wife against her husband to procure a divorce, the husband has notice of a motion to compel him to pay alimony, contests it, is defeated, and subsequently leaves the State and fails to comply with the order, he is in contempt of court, although the order may not have been served on him. In such a situation tlie court has power to strike out the answer interposed by the husband; it cannot strike out his notice of appearance, as he is entitled to notice of, and to appear in, all proceedings had in the action. Appeal by the defendant, George W. Proctor Knott, from an ■order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day. of April, 1896, striking out the appearance and answer interposed by the defendant in the action The action was brought to obtain a divorce; the defendant interposed an answer, and after the joining of issue an application was made for alimony and couns.el fee. This application was opposed by the defendant, but was finally granted by the court. ■' The order ¡granting it was never served upon the defendant. .Percy L. Block, for the appellant. William P. B%m\ for the respondent. [MAJORITY — Per Curiam :] Per Curiam : The defendant had notice of the motion for alimony and a conn-, ■sel fee, appeared before the referee by whom the question of fact arising upon the motion was heard, contested the right of the plaintiff to alimony and a counsel fee, and appeared before the court when the final' order directing the payment of alimony and a counsel fee was made. He does not deny that he had notice of that order ■and knew of its contents. Subsequent to' the granting of the order he left the State, and consequently the order was not served upon him. He has failed to comply with the order in any respect, or to pay anything to the plaintiff on account of the alimony and counsel fee directed by that order to be paid. We think.the court below had power to strike out the answer. . (Quigley v. Quigley, 45 Hun, 24; Walker v. Walker, 82 N. Y. 261; Brisbane v. Brisbane, 5 Civ. Proc. Rep. 352.) . The fact that, in consequence of the defendant’s refusal to compiy with the order of the court, sequestration proceedings were instituted ■and a receiver appointed, simply emphasizes the defendant’s contempt, and that those proceedings have been ineffectual is no reason why any other proceedings should not be taken against the defendant to compel him to comply with the order of the court. The court below had no authority to strike out the appearance of the defendant. The defendant had a right to apjoear in the action so as to have notice of the subsequent proceedings. The order should, therefore, be modined so as to provide that the answer interposed -by the defendant be stricken out, and that the 'action proceed as if such answer had not been interposed, and as so modified affirmed, without costs to either narty of this appeal. Present—Van Brunt, P. J., Barrett, Rumsey, O’Brien and Ingraham, JJ. Order modified so as to provide that the answer interposed by tne defendant be stricken out, and that the action proceed as if such answer had not been interposed, and as so modified affirmed, without costs of appeal to either party.