Opinion
April, 1916.
Present — Clarke, P.J., Laughlin, Dowling, Page and Davis, JJ.
This action is brought for a separation. The court at Special Term denied the plaintiff's application for alimony and counsel fees pendente lite on the ground that the court had no jurisdiction of the action. The application was decided on the pleadings and the affidavits submitted by both parties. These papers raised an issue as to the residence of the parties, upon which depended jurisdiction under section 1763, subdivision 3, of the Code of Civil Procedure. This important and vital question should not be determined upon affidavits, but rather at the trial. It has been held by this court that disputed questions of jurisdiction in cases of this kind should not be determined merely upon affidavits, but should be reserved for the trial. ( Barber v. Barber, 137 App. Div. 665.) The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, and remitted to the Special Term to fix the amount of alimony and counsel fee.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, and remitted to the Special Term to fix the amount of alimony and counsel fee.