Opinion
February 9, 1970
In an action for divorce pursuant to subdivision (3) of section 170 of the Domestic Relations Law, defendant husband appeals from an order of the Supreme Court, Kings County, entered September 5, 1969, which denied his motion to stay all proceedings in the action and for assignment of counsel. Order modified, on the law, the facts and in the exercise of discretion, by striking therefrom the second decretal paragraph and by substituting therefor the following: "ORDERED that the defendant's motion for the assignment of counsel be and the same hereby is granted; and Joseph Crea, Esq., of 250 Joralemon Street, Brooklyn, New York, 11201, is assigned to defend the action on the defendant's behalf." As so modified, order affirmed, without costs. In our opinion, the denial of the stay was proper, since there was no showing that defendant's physical presence at the trial will be necessary, and since it appears that his rights may be adequately protected by counsel ( Bagley v. Bagley, 57 Misc.2d 388, and cases cited therein; see, also, Garner v. Garner, 59 Misc.2d 29). However, inasmuch as defendant is imprisoned without the State, and since his claim of indigency is uncontradicted, the denial of his request for the assignment of counsel was, in our view, an improvident exercise of discretion (cf. CPLR 1102, subd. [a]; Garner v. Garner, supra). Rabin, Acting P.J., Munder, Martuscello, Brennan and Benjamin, JJ., concur.