¶1On the appeal from the order fixing counsel fees and expenses, decided herewith (Van Wyck v. Stapp, 257 App. Div. 304), we determined that such fixation was erroneous. The present order, granting a stay for non-payment of such sums, must, of course, fall in so far as it is based on these items.
¶2We are further of the opinion that, in so far as the stay is based upon the failure to pay alimony in the separation action, it is improper. Such alimony was directed to be paid by the husband, who has since been declared incompetent. We see no reason why this action by the mother to annul the marriage, on the ground of incompetency at the time of the marriage, should be delayed because of the failure of the incompetent to pay. He cannot comply for his property is in the hands of a committee.
¶3In the event the committee of the property of the incompetent may be directed to pay a counsel fee to defendant or to pay other expenses found necessary for the preparation of the defense of this action and fails to do so, further application may be made for a stay of the trial of this action.
¶4The order should be reversed, without costs, and the motion denied.
¶5Present — Townley, Untermyer, Cohn and Callahan, JJ.
¶6Order unanimously reversed, without costs, and the motion denied.