Novack v. Novack

• Decision Date: 20 February 1962
• Citation: 226 N.Y.S.2d 323
• Parties: Gertrude G. NOVACK, Plaintiff, v. Jack NOVACK, also known as Jacob Novack, Defendant.
• Court: New York Supreme Court

Page 323

226 N.Y.S.2d 323

Gertrude G. NOVACK, Plaintiff, v. Jack NOVACK, also known as Jacob Novack, Defendant.

Supreme Court, Westchester County.

Feb. 20, 1962.

Sydney D. Bierman, New York City, for plaintiff.

Taylor & McMahon, Harrison, for defendant.

GEORGE M. FANELLI, Justice.

In this separation action in which the husband has not interposed any counterclaim, plaintiff-wife moves: (1) to strike out the note of issue; (2) to strike this case from the calendar; and (3) to stay defendant from taking any affirmative steps and proceedings whatever unless and until he purges himself from his contempt of this court.

It appears from the papers that on December 13, 1961 defendant was adjudged in contempt because of his failure to pay pendente lite awards of alimony and counsel fees, with leave to purge himself. Having failed to purge himself, defendant was committed on December 21, 1961 and he is presently in the Westchester County Jail. He has now served and filed a note of issue and statement of readiness placing his case on the February 1962 Special Term, Part II calendar for trial.

In opposing the motion defendant has not seen fit to present any affidavit setting forth special circumstances which might appeal to the discretion of the court to the extent of permitting a trial of the action notwithstanding his failure to comply with the orders of this court. Instead, his attorneys have submitted a memorandum of law calling the court's attention to section 167-a of the Civil Practice Act which provides that 'Whenever in an action for divorce or separation wherein the husband is plaintiff or wherein the wife is plaintiff but the husband interposes a counterclaim, the court or the judge thereof may refuse to grant an order to stay proceedings, where the only default is the failure of the husband to pay alimony or counsel fees due to his inability to make such payments. In no event shall a husband who has been imprisoned for contempt of court for failure to pay alimony or counsel fees or by virtue of an order of arrest under section eight hundred twenty-seven of the civil practice act be stayed from proceeding with the prosecution or defense of an action where the only default is the failure of the husband to pay alimony or counsel fees'.

The difficulty with defendant's contention in this regard is that section 167-a Civil Practice Act does not apply to the facts in this case. The husband is not a plaintiff, and, as a defendant, he has not interposed any counterclaim. Although it is true that he is presently imprisoned for contempt, plaintiff does not seek to deprive him from...