Wolbert v. Wolbert

¶1Motion by defendant to withdraw a prior motion and to dismiss plaintiff’s appeal upon the ground that the notice of appeal was not timely served, granted; appeal dismissed, without costs, and without prejudice to a new application by plaintiff at Special Term, if she be so advised, for the relief sought. The appeal sought to be taken herein is from an order which denied plaintiff’s application for sequestration. Such denial was not on the merits but upon the erroneous assumption that relief had been granted some three years earlier by a decision made by another Justice, on a prior application. Such decision, however, was never implemented by an order, and recently the Justice who rendered the decision refused to sign an order thereon upon the ground that the lapse of time had caused the prior application to be abandoned. Since plaintiff’s application for sequestration was never disposed of on the merits she may, if so advised, apply to Special Term de novo (see Wolbert v. Wolbert, 15 A D 2d 935 herewith). Beldock, P. J., Ughetta, Kleinfeld, Brennan and Hill, JJ., concur.