Opinion
June 28, 1943.
In an action for a separation, plaintiff wife appeals (1) from an order dated May 10, 1943, vacating an order and warrant of commitment, releasing defendant husband from custody, and granting other relief; and (2) from an order dated May 27, 1943, granting reargument of the motion which resulted in the order of May 10, 1943, and upon reargument adhering to the original decision. Order on reargument reversed on the law and the facts, with ten dollars costs and disbursements, and defendant's motion denied, with ten dollars costs. Appeal from order dated May 10, 1943, dismissed, without costs, on the ground that it was superseded by the order on reargument, in which all its provisions are deemed to have been incorporated. The order was improvidently made. The relevant facts inferable from the record did not disclose a situation as to the alleged financial inability of the defendant warranting what was, in effect, a reduction of the fine of $1,400, imposed upon him for contempt of court, to the sum of $250. The provision therein purporting to restrain the justice of another court was unwarranted and improper. The opening of the defendant's default on the call of the calendar and the direction that the case be tried at the next available term constituted error because of the defendant's presence at the inquest taken and his participation in that inquest, and because defendant did not show merits. Defendant was also guilty of laches. The provisions of the order modifying a previous order fixing alimony, etc., which provisions reduced alimony previously fixed and provided for the payment of the reduced alimony and a counsel fee, were improper because of the error in opening defendant's default. Close, P.J., Hagarty, Carswell, Adel and Taylor, JJ., concur.