Sherwood v. Sherwood

Decision Date28 January 1958
Citation5 A.D.2d 137,170 N.Y.S.2d 122
PartiesHertha SHERWOOD, Plaintiff-Appellant, v. Leo SHERWOOD, also known as Leo Safir, Defendant-Respondent.
CourtNew York Supreme Court — Appellate Division

Roy Berlin, New York City (Beatrice Rothaus, New York City, of counsel), for appellant.

Frank G. Wittenberg, New York City, of counsel (Katz, Wittenberg & Katz, New York City), for respondent.

Before BOTEIN, P. J., and VALENTE, McNALLY, STEVENS and BERGAN, JJ.

PER CURIAM.

In this suit for separation brought by the wife on the grounds of the husband's alleged adultery and cruel and inhuman treatment, defendant, in addition to denials, has pleaded as defenses--condonation, plaintiff's abandonment and her alleged adultery in 1951. The charge of the wife's adultery also forms the basis for a counterclaim for separation. Defendant who is now in Holland, claims to be a resident of that country. He is in default in making any payments of temporary alimony and counsel fees ordered by the Court.

This appeal is from an order granting defendant's motion to take his own deposition in Holland, pursuant to Section 288, Civil Practice Act, to be used on the trial in support of his defense of adultery. Appellant urges that defendant's failure to comply with the order of the Court directing payment of alimony and counsel fee estops him from proceeding affirmatively in this action, including the taking of his own deposition.

Since the decision of Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215, the courts of this State have held that a defendant in a matrimonial action may not be deprived of his right to defend the suit because of a failure to comply with an order directing the payment of alimony and counsel fees. Landry v. Landry, 215 App.Div. 316, 213 N.Y.S. 671; Gray v. Gray, 162 App.Div. 586, 148 N.Y.S. 24; Sibley v. Sibley, 76 App.Div. 132, 78 N.Y.S. 743; see Annotation at 62 A.L.R. 663. But this right to defend does not include a privilege to take any progressive steps in the action.

While defendant in this case is the moving party--and in that sense the motion represents an affirmative step--it cannot be said that the taking of his own deposition for use on the trial is a progressive step in the action. His deposition, if used, will merely be in substitution of his own testimony were he present at the trial. It is the only method by which he may prove his defense if he is to remain in Holland. Thus, to have denied the motion because...

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5 cases
  • Kahn v. Shainswit, 76 Civ. 2225.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 1, 1976
    ...A determination under § 239 will not be set aside by the appellate courts absent a showing of abuse of discretion; see Sherwood v. Sherwood, 5 A.D.2d 137, 170 N.Y. S.2d 122 (1st Dept. 1958); Novack v. Novack, 226 N.Y.S.2d 323 (Sup.Ct.1962). The statute does not allow the court to foreclose ......
  • Hubbard v. Hubbard
    • United States
    • United States State Supreme Court (New York)
    • September 30, 1981
    ...defend a suit because of a failure to comply with an order directing the payment of alimony or counsel fees (Sherwood v. Sherwood, 5 A.D.2d 137, 170 N.Y.S.2d 122 (1st Dep't 1958); Zeitz v. Zeitz, 263 A.D. 825, 31 N.Y.S.2d 318 (2nd Dep't 1941); Harney v. Harney, 110 App.Div. 20, 96 N.Y.S.2d ......
  • Dore v. Dore
    • United States
    • United States State Supreme Court (New York)
    • January 23, 1961
    ......743; see Annotation 62 A.L.R. 663. But this right to defend does not include a privilege to take any progressive steps in the action', Sherwood v. Sherwood, 5 A.D.2d 137, 170 N.Y.S.2d 122, 123. Plaintiff relies on Walker v. Walker, 82 N.Y. 260, Quigley v. Quigley, 45 Hun 23, and Knott v. ......
  • People v. Torres
    • United States
    • New York Supreme Court Appellate Division
    • January 28, 1958
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