Charles E. Fennessy, Respondent, v. Gertrude Victoria Fennessy, Appellant

Charles E. Fennessy, Respondent, v. Gertrude Victoria Fennessy, Appellant. First Department, February 9, 1906. Preferred cause — husband failing to . pay alimony not entitled to ’ preference in action for divorce. A husband who has been ordered to pay temporary alimony and counsel fees in an action for divorce and has failed to do so is not entitled to move for a preference under section 791, subdivision 13, of the Code of Civil Procedure. When a counsel fee is awarded, the wife is entitled to have it paid a reasonable time before the trial to the end that she may have her case properly prepared. Appeal by thé defendant, Gertrude Victoria Fennessy, 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 8tli day of January, 1906, granting the plaintiff’s motion for a preference. Alfred Beekmann, for the appellant. MacDonald De Witt, for the respondent. [MAJORITY — Laughlin, J.:] Laughlin, J.: This is an action for divorce. On the-11th day - óf December, 1905, the court on the application of the defendant made gri order requiring the plaintiff to pay, one. hundred .dollars counsel fee and ten. dollars, per week alimony until the further-order of the court. The inotion for a preference was -based on. subdivision-13 of section 791 of the Code of Civil Procedure which authorizes a preference in an action for divorce wFen temporary, alimony has been allowed.' The opposing - affidavits show that the 'order of the court, which" was duly served on the attorney on. the twelfth day of December, hut could.not he served on plaintiff personally owing to his absence from the. State,, requiring the. payment - of counsel fees and alimony,, has. not been complied with. - The preference was'designed for the protection'of husbands paying counsel fees or alimony by affording them a .speedy^ trial of the issues to, the end that, if innocent, they might be soon relieved from the order. This husband is attempting' to take advantage of it to avoid the paymént of counsel fees and' alimony. He should not be heard on any proceeding in -the action instituted by himself until he. complies with the order o.f the court requiring the payment .of counsel fees and alimony ; but of coursé he has a constitutional right to' be heard on any affirmative steps, taken by the defendant. (Sibley v. Sibley, 76 App. Div. 132.) When a counsel fee is awarded in this class of Cases the wife is entitled to have, it paid a reasonable time before the trial .to the ehd that she may have her case properly prepared. We are of'opinion that for that reason the motion should have been denied. - ' • It follows, therefore, .that the order should be reversed* with ten dollars costs and -disbursements, and the motion denied',, with ten dollars costs. , ' . O’Bbien/P. J,, 'ÍngbahA$r,.Clabke and Houghton, J J'., concurred. Order reversed, with ten dollars, costs, and disbursements, and' motion denied-, with ten dollars costs'. "