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MATTER ERIN WISE v. JERRY D. WISE (04/21/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


April 21, 1969

IN THE MATTER OF ERIN WISE, APPELLANT,
v.
JERRY D. WISE, RESPONDENT. COUNTY OF NASSAU, RESPONDENT

Appeal by petitioner from an order of the Family Court, Nassau County, dated January 9, 1969, which denied her motion for leave to appeal to this court as a poor person from a previous order of the same court denying her motion to increase the amount of support for two infant children of the parties.

Brennan, Acting P. J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.

Both sides have briefed the appeal on the assumption that the order of January 9, 1969 is appealable; and the question of appealability has not been litigated. We consequently do not reach or determine the issue of appealability. In our opinion it was an improvident exercise of discretion to deny petitioner's motion for leave to appeal as a poor person (Jenks v. Murphy, 21 A.D.2d 346).

Disposition

Order reversed, on the law and the facts, without costs, and motion for leave to appeal as a poor person granted.

19690421

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