#### Elma Diamond, Respondent, v. Nathan Diamond, Appellant.

*Husband and wife*— *alimony—counsel fees—■order to show cause—service of summons.*

Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 24th' day of November, 1908, directing the defendant to pay seventy-five dollars counsel fee and twelve dollars and fifty cents per week alimony.

*874Order affirmed, with ten dollars costs and disbursements.

No opinion. Present—Ingraham, McLaughlin, Clarke, Houghton and Scott, JJ. (McLaughlin and Clarke, JJ., dissenting.)

McLaughlin, J. (dissenting):

On the 30th of October, 1908, an order was served upon the defendant, together with the papers upon which it was granted, viz.— summons, complaint and affidavits of the plaintiff and her attorney — which were dated the same day, directing him to show cause at a time and place stated, why counsel fee and alimony pending the action should not be granted to the plaintiff. The papers were all fastened together und'er the one cover. This was the only service of the summons in the action which was made upon the defendant. Upon the return of the order to" show cause the defendant submitted two affidavits, by the first of which he appeared specially for the purpose of raising a preliminary objection that the court had not acquired jurisdiction of him by the service of the summons in the manner described. This objection was overruled and the order made from which, as resettled, he now appeals. I do not think the court had any power to make the order in question. Such an order can only be made during the pendency of the action. (Code Civ. Proc. § 1769.) The Code of Civil Procedure provides that eight days’ notice of motion must be given unless an order to. show cause is granted. (§ 780.) In the present case, when the order to show cause was made, the summons had not been served and the action had not been commenced. (§ 416.) The court, therefore, was without jurisdiction to grant the order to show cause. As was said in *Matter of Quick*(92 App. Div. 131; affd., 179 N. Y. 601): “That section (780) provides that if notice of a motion * * * is necessary, it must, if personally served, be at least an eight days’ notice, except where special provision is otherwise made by law or by the General Rules of Practice; unless the court or a judge * * * makes an order to show cause, * * * and in. such order directs that a service of less than eight days before it is returnable be deemed sufficient. Very evidently this section applies to matters that are already pending, and over which the court has already acquired jurisdiction. * * * Therefore, when the order to .show cause was granted, there was no proceeding whatever pending in which the order could be deemed to have been made. There was no motion to be then made which, under section 780, could be made in eight days and which the petitioner might, under the same section, ask permission to make on a less time.” The order to show cause, which resulted in the order appealed from, therefore, was a nullity, and there was no motion property before the court. The defendant had never been served with notice of the motion. That being so, the order appealed from could only be made with defendant’s consent, and that he did not consent or waive due service of notice of the motion is perfectly evident from his affidavit which he presented on the return of the order to show cause and in which he stated: “I appear specialty in opposition to the motion instituted by the plaintiff above named for alimony and counsel fee herein, and for the express, jiurpose, and no Other, to interpose a preliminary objection to the hearing of that motion and to object to the jurisdiction of the court. I do not by this appearance submit myself to the jurisdiction of the court in this action, nor waive any of my statutory or consti*875tutional rights in that respect.” It further appeared from his affidavit, and the fact was not contradicted, that he had not been personally served with the summons or a copy of it, other than with the copy annexed to the order to show cause, nor had there been substituted service of the summons. After his objec tion to the jurisdiction of the court had been overruled, it is true he made a replying affidavit upon the merits, but this does not affect the question. An order affecting a substantial right, made without notice to the party interested, may not be upheld, on the ground that for aught that appears a similar order would have been made after notice given. *(Wheeler*v. *Emmeluth,*121 N. Y. 241.) Nor do I think the summons was properly served upon him. It was not such service ns the Code contemplates, which is to notify a party that an action is thereby commenced. The order directed him to show cause why alimony and counsel fee should not be granted. Such order presupposed that the action had already been commenced; otherwise, the court had no jurisdiction to make the order. This was the only notice given. Service in this way could hardly do otherwise than mislead a party — the very thing the statute directing service was designed to prevent. I think the court was without jurisdiction to make the order appealed from, and for that reason it should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Clarke, J., concurred.