
    Florence W. Van Wyck, Appellant, v. Mozellecita Stapp, Also Known as Mozellecita Van Wyck, Respondent.
    First Department,
    June 29, 1939.
    
      
      Thomas A. McGrath, for the appellant.
    
      Emil K. Ellis, for the respondent.
   Per Curiam.

On the appeal from the order fixing counsel fees and expenses, decided herewith (Van Wyck v. Stapp, 257 App. Div. 304), we determined that such fixation was erroneous. The present order, granting a stay for non-payment of such sums, must, of course, fall in so far as it is based on these items.

We are further of the opinion that, in so far as the stay is based upon the failure to pay alimony in the separation action, it is improper. Such alimony was directed to be paid by the husband, who has since been declared incompetent. We see no reason why this action by the mother to annul the marriage, on the ground of incompetency at the time of the marriage, should be delayed because of the failure of the incompetent to pay. He cannot comply for his property is in the hands of a committee.

In the event the committee of the property of the incompetent may be directed to pay a counsel fee to defendant or to pay other expenses found necessary for the preparation of the defense of this action and fails to do so, further application may be made for a stay of the trial of this action.

The order should be reversed, without costs, and the motion denied.

Present — Townley, Untermyer, Cohn and Callahan, JJ.

Order unanimously reversed, without costs, and the motion denied.  