Opinion
January 21, 1914.
Rollin B. Sanford, for the appellant.
Osborn, Bloodgood Wilbur [ Frank H. Osborn of counsel], for the respondent.
The complaint in this action alleges the intermarriage of plaintiff and defendant on the 16th day of March, 1912, at Yonkers; that they are both residents of the State of New York, and that on the 16th day of September, 1912, "the defendant, disregarding her duties and obligations as the plaintiff's wife, wrongfully and without just cause or provocation abandoned the plaintiff, without his consent, and has ever since been wilfully and continuously absent from the plaintiff without his consent, and without any sufficient cause or justification therefor, and, on information and belief, with intent on her part not to return to and live with the plaintiff as his wife." The defendant, by an answer verified by her attorney, denies "upon information and belief" the matters alleged in the 2d paragraph of the complaint embracing all of the allegations other than the fact of the marriage.
The defendant made an application for alimony and counsel fees to enable her to defend this action, in her moving papers making allegations to the effect that she had contracted a venereal disease from the plaintiff and conduct on his part making it unsafe and improper for her to cohabit with him This application was denied, the order being entered upon the 17th day of February, 1913. No appeal was taken from this order, but subsequently and on the twenty-fifth day of February the defendant's attorney served a notice of motion to reopen and resettle the order of February eighth, entered on the seventeenth, and on this motion coming on for hearing the court denied the motion, with costs, the order being entered on the 9th day of April, 1913. On the fifteenth day of April, almost two months after the entry of the original order, defendant gave notice of appeal to the Appellate Division "from an order made at the Albany Special Term on the eighth day of February, 1913, * * * and entered * * * February 17, 1913, denying the defendant's motion for an order directing the plaintiff to pay the defendant a counsel fee and alimony, and from each and every part of said order; and also from an order made at the Albany Special Term held on the eighth day of April, 1913, * * * entered * * * April 9, 1913, denying the defendant's motion for an order reopening and resettling said order of February 8, 1913, and directing the plaintiff to pay to the defendant a counsel fee herein, and from each and every part of said order. And the defendant hereby gives notice that she intends to bring up for review on said appeal both of said orders above referred to, and all papers and instruments relating to the same."
Section 1351 of the Code of Civil Procedure provides that an "appeal authorized by this title must be taken within thirty days after service upon the attorney for the appellant" of a copy of the order; but the defendant, after asking the court at Special Term to reverse its own order, is now seeking to review the original order long after the time to appeal has expired; and, even in the case of the second order, the motion was merely to reopen and to resettle the original order, and, if this order could be reviewed, it would operate to extend the time for appeal from the original order — a power not vested in this court. ( Guarantee Trust Co. v. P., R. N.E.R.R. Co., 160 N.Y. 1, 7, and authorities there cited.) Nor could this power be enlarged under the provisions of section 1301 of the Code of Civil Procedure, for that relates wholly to final judgments and final orders in special proceedings. ( Arkenburgh v. Arkenburgh, 14 App. Div. 367, 368.) In the matter now before us the same questions were involved upon the motion to reopen and resettle the original order that were involved in the first motion; there were merely some additional matters alleged, and the practice appears to be directed toward producing a result regardless of the established rules of procedure.
Upon the merits we are not persuaded that the court at Special Term did not act well within its discretionary powers. The affidavits in behalf of the plaintiff plainly tend to discredit the more or less improbable allegations of the defendant's affidavits, and this court would not be justified in interfering with the intelligently directed discretion of the Special Term.
The order appealed from should be affirmed, and as there could be no appeal from the original order that must remain as it has stood from the date of its entry.
All concurred.
Order of April 9, 1913, affirmed, without costs. Appeal from order of February 17, 1913, dismissed, without costs.