Weiss v. Weiss

Order reversed upon the law, without costs, and motion denied, without costs. The court was without power to enter a personal judgment against the defendant in this action directing the payment of alimony; that provision in the judgment is, therefore, void, and the defendant cannot be punished for contempt for failure to comply therewith. Nor did defendant’s appearance on the motion constitute a general appearance in the action. (Robinson v. Robinson, 123 Misc. 80.) The recitals in the order for publication of the summons show that the order was not for substituted service upon a resident defendant, it having been based upon affidavits showing that plaintiff was unable to ascertain whether defendant was or was not a resident of the State, and, therefore, asked for an order for service by publication under subdivision 1 of section 232 of the Civil Practice Act, Furthermore, an order for substituted service may not be had in matrimonial actions. (Purvis v. Purvis, 167 App. Div. 717.) Lazansky, P. J., Rich, Young, Seeger and Scudder, JJ., concur.