
    Alvina J. Knauer, Appellant, v. Adam Christ. Knauer, Respondent.
    First Department,
    November 8, 1907.
    Separation — alimony—judgment not opened.
    A motion to vacate a judgment of separation should not be granted while the defendant is in default in páyment of alimony.
    ■ Appeal by the plaintiff, Alvina J. Knauer, from an. order of the - Sppreme Court, made at-the New York Special Term-and entered in the office of the clerk of the county of New York on the 21st day of August, 1907, granting, the defendant’s motion-to vacate the judgment-of separation theretofore rendered in favor-of the plaintiff in the above-entitled action. ' ' .'
    
      George E. Morgan and Sidney Smith, for the appellant.
    
      Harry R. Berlinicke and Harry C. Adams, for the respondent.
   Ingraham, J.:

The action was for a limited divorce. The. defendant interposed an answer and the case coming on for tidal the defendant defaulted and final judgment was entered for the plaintiff granting a limited divorce and requiring the defendant to pay the sum of four dollars per week alimony. A certified copy of .this judgment was served on the . defendant on the 2d day of March, 1907. The defendant took no steps either to have his default opened or to comply with the judgment, and on the ninth- day of July a'formal demand was made upon him for the amount due under the judgment.' That demand not being complied with an application was made to punish him for contempt. The defendant' then made a motion tó vacate and set aside the' judgment and to have the case réstored to the ■calendar and that he be permitted to come in and defend the action.

It "appeared that when the case was reached on the calendar for trial counsel for the plaintiff informed the attorney for the defendant that the action was about to he tried andthe attorney for the defendant replied that he had been unable to get in touch with his client and he did -not appear at the trial. The case was then tried §t Special Term-and final judgment-awarded the plaintiff. ■ Subsequent to" the entry of judgment, the defendant’s attorney died and the defendant retained new attorneys to make this application.

The court below granted the motion and vacated the judgment, entered on default upon payment of ten dollars costs of the motion, notwithstanding the default of the defendant in the payment of the alimony directed by the judgment to be paid to. the plaintiff. The court should have refused to entertain the application at all until the defendant had complied with the. order of the court and relieved himself from his contempt, but as it entertained the application upon the facts presented" the defendant should only be permitted to try the issues upon payment of the amount .due under the judgment.

The order appealed from should, therefore, be modified so as to allow the defendant to come in and try the issues presented upon payment of the amount in arrears for alimony, ten dollars costs of opposing the "motion and ten dollars costs and disbursements of this' appeal, the judgment as entered to stand until- after the trial of the action, the defendant to have leave to move to vacate the judgment in the event that he. succeeds upon the trial. If these terms are not complied with within ten days after the service xipon 1 fis'attorneys of a copy of the order entered upon this appeal, then the order appealed from is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. ■

Patterson, Clarke, Scott and Lambert, JJ., concurred,"

Order modified as, directed in opinion Upon, the terms therein stated. Settle order on notice.  