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3 N.Y.L. Jist 1 (1938-1939)

handle is hein.journals/newrojis3 and id is 1 raw text is: Na VIark iEaw itat A Compendium of Current Decisions Reported in the New York Law, Journal VOL. 3 NO. 1 Page 1 $5.00 per annum Issued, Weekly by the Lexapedia Publishing Co., Inc. 45 West 45th Street, New York, N.Y. Entered as second-class matite'r, May 12, 1937, at the Post Office at New York N.Y. Copyright 1938, Lexapedia Publishing Co., Inc. September 29, 1938 *KEY TO REFERENCE: Title-Court-Justice-Date decision published in New York Lawt Journal-Page-Column ALIMONY & COUNSEL FEE Alimony accruing between the time of the making of the motion to punish for contempt and the actual argument there- of may not be included in the decision, but must be the subject of a new motion. *Kaplan-Kaplan ISupKI Nova19-14-38166413 The fact that plaintiff has been unable to compel defendant to comply with an order for temporary alimony, although defendant has been adjudged guilty of contempt and incarcerated, affords no basis upon which to predicate an excep- tion to the rule that a judgment may not be entered for unpaid temporary ali- mony (245 AD 91, aff'd 275 NY 470; 241 AD 762) Bernstein-Same SupK[Riegelmann l9-15-38168014 Where plaintiff's motion for alimony and counsel fee was denied without pre- judice to renewal on the trial, on the ground that plaintiff had not demonstra- ted reasonable probability of success, held, another justice at Special Term may not make an allowance for the cost of taking an appeal from such order, since, to warrant the relief sought, the court must find reasonable probability of success upon the appeal and thus, in effect, reverse another justice at Special Term. Friedman-Samel SupQ lHallinan |9-17-38171217 ARBITRATION The words making of the contract as used in CPA 1458 refer to a 'contract providing for arbitration of the dispute submitted' as specified in CPA 1448. Hence, defendants (who were personally served with notice of intention to arbi- trate) may not, on a motion to confirm the award, raise the issue as to whether the contract provided for arbitration of the particular dispute involved on the theory that 'the making of the contract' is conceded and it is merely its effect which is sought to be determined. Clause providing for arbitration should there be any disagreement be- tween the parties to the agreement con- cerning the rights or obligations of either of the parties in relation thereto is sufficiently broad to authorize arbi- tration as to whether there had been a breach of the contract (252 NY 577). Facts in instant case, held, distinguish- able from those in 240 NY 244 and 252 NY 284. M. of PierceISupWI Nolan 19-12-38163416 ATTORNEY & CLIENT Substitution of attorneys is granted without prejudice to the lien of the re- tiring attorney, which may be fixed either upon a reference, or by an in- dependent action at law. The retiring attorney should receive notice of all sub- sequent proceedings and he may retain all papers and exhibits in his possession until satisfaction of his lien. However, the substituted attorney may examine and make copies of the papers and ex- hibits and may subpoena them for use upon the trial (see 266 NY 184). Hanley-Goward| CNY|IParella 9-13-38 164312 BARRATRY A partial defense which sets up bar- ratrous conduct on the part of plaintiff's assignor, and alleges undue influence merely for the purpose of showing how the alleged barratrous conduct was made possible, held, insufficient where it fails to allege that at least three groundless actions or proceedings were excited by plaintiff's assignor (Penal Law 322). Pettersen-Youngl SupNYI Collins19-17-38170611 BILL OF PARTICULARS In action for divorce, bill of particu-