majority">Scott, J.:

Appeal -from order staying all proceedings on the part of defendant. The action was begun October. 2, 1908, for a separation. Defendant answered denying the allegations of the complaint and counterclaiming for a separation on his part. On October 29,1908, an order was made directing defendant to pay forty dollars counsel fee and six dollars per-week alimony. He paid a part of the counsel fee and paid alimony -until January 25, 1909, when he ‘ceased paying. On March 30, 1909, defendant was adjudged guilty of contempt and sentenced to imprisonment. He remained iii jail until July 1,1909, when he was discharged under section 111 of the Code of Civil Procedure, having served three months. The action is on the calendar and has been called twice, having been put over each time on account of plaintiff’s condition of health. On January.26, 1910, by permission of the court, defendant served an amended *349answer containing a second counterclaim in which he prayed an annulment of the marriage on account of plaintiff’s insanity at the time it was contracted.

Under section .111 of the Code, defendant, having served the statutory period in jail for non-payment of alimony, cannot be rearrested even for alimony subsequently accruing. ( Winton v. Winton, 53 Hun, 4; affd., 117 N. Y. 623.) The plaintiff, however, is entitled to pursue any other remedy, even to stay affirmative action on-defendant’s part in the case. (Sibley v. Sibley, 76 App. Div. 132; Harney v. Harney, 110 id. 20.) lie may not, however, even for a contempt be deprived of an opportunity to defend himself against plaintiff’s attack. (Hovey v. Elliott, 167 U. S. 409.)

The order was, therefore, properly granted assuming, as we do, that its only effect is to restrain defendant from taking any step to enforce his counterclaims, leaving him free to meet and contest any . attempt on the part of plaintiff to enforce the cause of action set forth in her complaint. To resolve any doubt there may be as to the construction of the order it may be so modified as to limit its effect to proceeding on the part of defendant to enforce the counterclaims set forth in his amended answer, and as so modified affirmed, with ten dollars costs and disbursements to respondent.

Ihgbaham, P. J., Claeke and Milleb, JJ., concurred; Laughlih, J., dissented.

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