
    Mildred Di Benedetto, Plaintiff, v. Anthony Di Benedetto, Defendant.
    Supreme Court, Special Term, Kings County,
    August 5, 1958.
    
      Arthur Cooperman for plaintiff.
    
      Edwin W. Tucker for defendant.
   Mark A. Costantino, J.

Plaintiff moves for an order restraining the Sheriff of the City of New York, Kings County Division, from serving a summons and complaint upon her in a divorce action brought against her in the State of Nevada by her husband, the defendant herein.

A restraining order was heretofore on June 9, 1958 issued in the within pending separation action enjoining the defendant from instituting or prosecuting an action for divorce in the State of Nevada under the authority of Garvin v. Garvin (302 N. Y. 96).

Notice of the instant application was served upon the Sheriff and the attorney for the defendant. The Sheriff appears and does not oppose or support the application. The defendant’s attorney, appearing on behalf of the defendant, opposes the application upon purely technical grounds, neither of which is of any import.

It is the defendant’s contention that the restraining order provided that only upon termination of the separation action will the injunction provision become effective. He bases this conclusion upon the wording of the order, which reads as follows : ‘ ‘ ORDERED, that upon the trial and determination of the above entitled action, the defendant, Anthony Di Benedetto be and he hereby is enjoined and restrained from instituting or prosecuting an action for divorce against the plaintiff herein in the State of Nevada.”

The order had been made pursuant to the plaintiff’s motion for an injunction to become effective immediately. The motion was granted in all respects. The defendant was “ enjoined and restrained ’ ’ by the order. The use of the phrase ‘ ‘ upon the trial ’ ’ rather than ‘ ‘ until the trial ’ ’ is unfortunate, but it has not affected the validity of the court’s restraining provision.

The defendant objects that no certified copy of the restraining order was served by the plaintiff pursuant to section 883 of the Civil Practice Act, nor is there any allegation to that effect made by the plaintiff in her moving papers. Assuming that such be the facts, it has no application to the issuance of the order applied for herein to restrain the Sheriff from serving on behalf of the defendant process in an action brought by the defendant in violation of the injunctive provision.

Motion granted. Settle order on notice.  