118 N.Y.S. 625 | N.Y. Sup. Ct. | 1909
It is true that the inception of contempt proceedings in matrimonial actions is regulated exclusively by the provisions of section 1773, of the Code, which specify the circumstances under which an application to punish may be made and the form and substance of the order which may be granted upon such an application. Stewart v. Stewart, 127 App. Div. 724; People ex rel. Ready v. Walsh, 132 id. 462. The same section provides, however, that when the order has been made the subsequent proceedings must be taken as prescribed in article 19 of the Judiciary Law, which now embraces what was formerly title III of chapter 17 of the Code. There is therefore nothing in the statute which necessitates a holding that an order to show cause in a contempt proceeding in a matrimonial action requires to be served in any different manner than such an order in any other action, and that was the conclusion reached in Weich v. Weich, 59 Misc. Rep. 238, although the point was not necessarily decided in that case. The practice ought to be uniform in all cases, and there is nothing in the statutes or in the decisions to prevent such uniformity. Indeed, the statute expressly requires it. I think, therefore, that the service of the order to show cause upon the attorney for the defendant was sufficient. State Bank v. Wilchinsky, 64 Misc. Rep. 476. As pointed out in the case last cited, which was decided subsequently to the bringing on of the motion made herein to punish the defendant for contempt, the case of Goldie v. Goldie, 77 App. Div. 12, upon the authority of which such motion was denied, was distinguished in Grant v. Greene, 121 App. Div. 756, and was not in point. The motion for a reargument of, the motion to punish the defendant for a contempt is, therefore, granted, and the hearing of such motion will be set down for such time and at such place as shall be provided by the order to be entered hereon.
Settle order on notice.