#### John Boyd Gray, Respondent, *v.*Justine S. Gray, Appellant.

First Department,

May 29, 1914.

Husband and wife — action for divorce — failure of husband to pay alimony and counsel fees —• when husband in default cannot take affirmative action although not adjudged guilty of contempt — when consent to trial of issues not waiver of right to contest entry of judgment.

Where a plaintiff in a divorce action has failed to pay counsel fees and alimony *pendente lite*as ordered by the court, has fled the jurisdiction, and removed his property so that it cannot be reached by a receiver appointed to sequestrate the same, he will not be permitted to enter judgment dismissing his complaint and the defendant’s counterclaim for a divorce, although the jury has found that neither party was guilty of the offense charged, and this, even though he has not yet been formally adjudged guilty of contempt. Until he has paid the counsel fees and accrued alimony he can take no affirmative action in his own behalf, although he is entitled to be heard in his own defense on any motion which may be taken against him.

*587The defendant wife by consenting to the trial of the issues framed did not waive her right to object to the entry of the judgment dismissing the complaint and counterclaim, for she was at liberty to proceed with the trial of the issues in order to vindicate her character.

Appeal by the defendant, Justine S. Gray, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of April, 1914, granting plaintiff’s motion for judgment dismissing the complaint for failure of proof and dismissing defendant’s counterclaim on the merits, with leave to enter judgment accordingly.

*Evan Shelby,*for the appellant.

*John J. Curtin,*for the respondent.

Laughlin, J.:

This is an action for a divorce. The defendant denied the charges of misconduct against her and counterclaimed for a divorce. The issues with respect to the adultery charged in the complaint and in the counterclaim were framed and tried in Part 2 of the Trial Term on the 9th day of December, 1913, and resulted in all of the charges being answered in the negative by a verdict directed by the court. On the 9th of July, 1913, the court ordered the plaintiff to pay the defendant $1,500 for counsel fees and $250 per month pending the action, and the order was duly personally served on him on the eighteenth day of the same month. The plaintiff failed to pay the counsel fees and alimony, and on the 9th of January, 1914, an order was entered sequestering his property and appointing a receiver who qualified but was unable to collect any part of the amount so ordered to be paid by the plaintiff. Plaintiff appealed from the order for sequestration and appointing a receiver; but the order was affirmed by this court on the 30th of January, 1914. (160 App. Div. 932.) After the trial of the framed issues and on the 6th day of February, 1914, this cause appeared on the call calendar by its Special Term calendar number and was ordered onto the day calendar for February 13, 1914, whereupon defendant presented proof by affidavit tending to show that plaintiff was in contempt for failure to pay counsel fees and accrued alimony amounting to $3,270 and had left the *588jurisdiction of the court and transferred his business and property to avoid the process of the court, and, according to an affidavit made by the attorney for the defendant, the cause was ordered to the call calendar for February twenty-seventh to afford plaintiff an opportunity to purge himself of' his contempt and on the last-mentioned day it appeared on the call calendar and was ordered to the day calendar for March 9, 1914. On the 28th of February, 1914, plaintiff served a notice of motion returnable March 5, 1914, at Special Term, Part 3, for judgment dismissing the complaint and counterclaim on the verdict on the issues arising thereon, and the motion came on for argument on the ninth of March. We are informed, not by the record, but by a stipulation of the attorneys for the parties, that the justice before whom the motion was argued signed a decision and judgment on the sixteenth of March reciting that the cause had regularly come on for trial before another justice at Special Term, Part 3, and dismissing the complaint and counterclaim, but containing no reference to said motion for judgment, and that thereupon defendant moved to resettle and modify the decision and judgment, and that upon the hearing of that motion the court handed down a memorandum to the effect that an order might be submitted correcting the erroneous recitals in the judgment and also, a *separate order*granting the motion for leave to enter judgment, and reciting the papers upon which it was made. The purpose of granting and entering the order from which the defendant has appealed was to have the Appellate Division pass upon her right to a stay of the trial at Special Term and entry of judgment.

Counsel for the respondent contends that the order was unnecessary to authorize the entry of judgment, and that, therefore, the appeal should be dismissed. The appeal has been regularly brought on for argument without any motion to dismiss it, and in the circumstances we think it should be entertained, as evidently the learned justice presiding at Special Term contemplated withholding the entry of the judgment as resettled pending the appeal or vacating the judgment in the event that this court should decide that the plaintiff is not now entitled to have judgment entered. It appears that the alimony and counsel fees due and unpaid at the time the plaintiff *589moved for the entry of judgment amounted to $3,270. The purpose of the plaintiff in applying for the judgment manifestly is to avoid his liability for this alimony and counsel fees under the recent decision of the Court of Appeals in *Hayes*v. *Hayes*(208 N. Y. 600). The defendant showed by her own affidavit submitted in opposition to the motion, among other things, that since commencing this action the plaintiff has boasted to her that he would never pay her alimony and would give up his business and transfer all of his property and leave the country “ before he would pay her any alimony;” that the day after the decision of the court sequestering his property and appointing a receiver he removed from the apartment which he theretofore occupied and maintained on Riverside drive, borough of Manhattan, New York, and stored his household furniture and furnishings in a storage warehouse in Brooklyn under the name of his partner and transferred the title to the three automobiles which he had theretofore maintained to the names of others, and had one of them repainted with a view to concealing its identity, and sent two of them out of the State and took the other with him to Philadelphia, Penn., where he has taken up his residence, and that he *“*has left the jurisdiction of the court to avoid supporting, your deponent.” These charges are not denied.

The defendant was entitled to a stay of plaintiff’s proceedings for the non-payment of costs; but there is a question as to whether or not she has not waived her right to a stay on that ground, and we do not deem it necessary to decide that point. Although the plaintiff has not been formally adjudged guilty of contempt of court, it is manifest that he is in contempt of court, and it is a reasonable inference that he had fled the jurisdiction of the court. In such circumstances he is of course entitled' to be heard in his defense on any motion made or step that may be taken in the action, but he is not entitled to make any affirmative move or to take any step in his own right *(Fennessy*v. *Fennessy,*111 App. Div. 181; *Harney*v. *Harney,*110 id. 20), and he should not he permitted to enter judgment upon the verdict of the jury until he has paid the counsel fees and accrued alimony. It is contended that the appellant waived her right to object to the entry of judgment by con-*590seating to the trial of the framed issues. We are not now dealing with the question arising under section 779 of the Code of Civil Procedure, where the rule is technical with respect to the waiver of a stay for the non-payment of costs, but with the broad power of the court in the interest of justice to withhold its aid to a party who has failed to comply with its order and decree. The defendant rested under the charges of misconduct made against her by her husband. She was at liberty to proceed with the trial of the issues to vindicate her character without having that taken as á consent on her part that her husband might, on the verdict of the jury vindicating her, enter a final judgment which would deprive her of the rights conferred by the prior orders of the court.

We are of opinion, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, but with leave to plaintiff to renew on payment of the counsel fees and all accrued alimony.

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to plaintiff to renew on payment of counsel fees and all accrued alimony.