
    Matilda Legler, Respondent, v. Adolph Legler, Appellant.
    Fourth Department,
    March 13, 1935.
    
      Maurice J. Kaman, for the appellant.
    
      Charles E. Bostwick [Joseph Kaufman of counsel], for the respondent.
   Per Curiam.

The affidavit of the plaintiff’s attorney shows that alimony for the six months beginning October Í5, 1933, and ending April 15, 1934, amounting to $120, has been paid. This requires a modification of the order. The position of the defendant’s attorney in arguing against the merits of the order was inconsistent with his appearance being treated as special. (Farmer v. Nat. Life Assn., 138 N. Y. 265; Swift v. Tross, 55 How. Pr. 255.) There was no order first passing upon the jurisdictional question before argument on the merits was presented. The practice principles stated in Jones v. Jones (108 N. Y. 415); Muslusky v. Lehigh Valley Coal Co. (225 id. 584), and Finsilver, Still & Moss v. Goldberg, Maas & Co. (253 id. 382) are not applicable. Further, in our opinion, the court was authorized, in view of the judgment on personal service and the absence of the defendant from the State, to grant the order under the provisions of section 1171-a of the Civil Practice Act.

All concur. Present — Sears, P. J., Taylor, Thompson, Crosby and Lewis, JJ.

Order modified on the law and facts, and as modified affirmed, without costs.  