Dikeman v. Dikeman

108 Misc. 406 | N.Y. Sup. Ct. | 1919

Thompson, J.

Defendant, who is before us charged with contempt in failing to pay alimony in pursuance of a final judgment, attacks the proceeding on the ground that a certified copy of the judgment was never served on him.

His counsel informed him of its provisions and he has paid considerable amounts in compliance therewith, but has failed to make payment of any amount for some time.

It seems the only provision of law requiring service of a certified copy of a judgment upon one whom it is sought to punish for contempt for disobedience of its mandate is found in section 1241 of the Code of Civil Procedure.

Section 1773 of the Code of Civil Procedure contains no such direction nor does article 19 of the Judiciary Law.

It is true that the Appellate Division (Stanley v. Stanley, 116 App. Div. 544), has held that section 1241 does not apply to contempt proceedings for nonpayment of alimony since the adoption of section 1773 of the Code; distinguishing Park v. Park, 80 N. Y. 156, upon the theory that it antedates the enactment of the section.

In here holding that omitting to serve a certified copy of the judgment on the defendant was fatal and that proceedings of this nature still come under the rule stated in section 1241, I rely on the case of Ryckman v. Ryckman, 32 Hun, 193, which in terms refers to Park v. Park, supra, for its authority and which was decided some years after section 1773 was added to the Code. Motion denied, but without costs or prejudice.

Motion denied, "without costs.