De Cammillis v. De Cammillis

Order entered May 27, 1966 directing entry of judgment against defendant in the sum of $2,575 (and any judgment entered thereon) and denying cross motion of defendant unanimously reversed on the law and on the facts, without costs or disbursements to any party and motion granted to the extent of vacating (1) so much of the decree entered December 18, 1959 as awarded alimony against the person of defendant and (2) the order entered November 9,1965 (and any judgment entered thereon) directing entry of judgment against defendant in the sum of $33,058.31. The service of the summons and complaint upon defendant (a resident of Italy) by publication gave the courts of this State power to affect the res of the matrimonial status but not to award alimony against defendant’s person in the absence of in personam jurisdiction (cf. Estin v. Estin, 334 U. S. 541 ). We find no persuasive proof from which it could be found that defendant has ever appeared generally in the action. In such event only the personalty attached prior to the entry of judgment was subject to execution thereunder. (CPLR 301; Civ. Prac. Act, § 520; McCarthy v. Culkin, 254 N. Y. 328, 331 .) Moreover, if it could be found that defendant appeared generally after the entry of the quasi in rem judgment the jurisdiction of the court would not extend beyond that which existed at the time of the entry thereof in 1959 (Benadon v. Antonio, 10 A D 2d 40, 44). Settle order on notice. Concur — Botein, P. J., McNally, Stevens, Steuer and Bastow, JJ.