
    Joseph Naveja, Plaintiff, v. Dolores Naveja, Defendant.
    (Supreme Court, Queens Special Term for Motions,
    February, 1920.)
    Divorce — action for — alimony — what sufficient basis to stay all proceedings — pleading.
    While failure to pay alimony and counsel fees in an action for divorce may be a sufficient basis to stay all proceedings on the part of the plaintiff, it is not a legal ground for striking out his complaint.
    Motion to strike out the complaint in an action for divorce.
    
      Charles Brandt, Jr., for motion.
    Charles Pearle, opposed.
   Cropsey, J.

Prior to the decision of the Supreme Court of the United States in Hovey v. Elliott, 167 U. S. 409, it had been held by the courts of this state that in an equity action a pleading of a party who had been adjudged guilty of contempt in failing to obey the mandate of the court might be stricken out. Walker v. Walker, 82 N. Y. 262; Brisbane v. Brisbane, 34 Hun, 339; Quigley v. Quigley, 45 id. 24; Gray v. Gray, 84 id. 347; Knott v. Knott, 6 App. Div. 590. The United States decision held to the contrary and since its rendition it has been followed in Sibley v. Sibley, 76 App. Div. 132, and Harney v. Harney, 110 id. 20. Since the Hovey decision the Court of Appeals of this state held to the contrary. Devlin v. Hinman, 161 N. Y. 115. But the court did not refer to the Hovey decision and as the Devlin case was decided shortly after the Hovey case it may be that the Hovey decision was not before the Court of Appeals. In view of this fact and the decisions in the Appellate Division, above cited, it is felt that the decision in the United States court should be followed.

In a later case the Supreme Court of the United States distinguished the Hovey case. In that later case it was held that where the contempt consisted in the withholding of evidence essential to the opposing party’s case the pleading of the party thus in contempt might be stricken out. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 349-353.

The present case being a motion to strike out plaintiff’s complaint in a divorce action for failure to pay the alimony and counsel fee awarded to the defendant clearly comes within the decision in the Hovey case and so it must be denied. The plaintiff’s failure to obey the order of the court may be a sufficient basis to stay all his proceedings in the action even though it be not a ground for striking out his pleading. Harney v. Harney, 110 App. Div. 20; Tafel v. Tafel, 169 id. 417.

Ordered accordingly.  