76 N.Y.S. 813 | N.Y. App. Div. | 1902
This action was commenced by the plaintiff to recover a judgment for an absolute divorce, and at the time of the service of the summons and complaint in the action there was also served a notice of motion for alimony pendente lite and counsel fees. The defendant made default in appearing upon the motion and an order was granted directing the payment by the defendant of alimony and counsel fees in a specified sum, the order requiring that service should be made upon the defendant and settlement of the same had upon notice. When the proposed order and notice of settlement was served upon the defendant he applied for and obtained leave to open his default, and upon the hearing had upon the subsequent application the court made an order awarding to the plaintiff the sum of $8 a week as alimony and $125 as counsel fees.
A copy of this order was served upon the defendant by the plaintiff, but no demand was made upon him at that time for the payment of the alimony and the counsel fee or of either. From this order the defendant appealed to this court, where the same was modified by reducing the amount of the alimony to six dollars a week and the counsel fee to fifty dollars, and as so modified the order was affirmed. This order was never served upon the defendant and no demand of payment of the alimony and counsel fee awarded thereunder has ever been made. Thereafter the plaintiff obtained an order to show cause why the defendant should not be punished for contempt in failing to obey the several orders directing him to pay alimony and counsel fees. This order coming on to be heard on March 6, 1902, the defendant was adjudged to be guilty of contempt and was directed to be committed by the sheriff of the county of Hew York to the common jail in the city of Hew York, in the borough of Manhattan, and to be there detained in close custody until he should be discharged according to law. On April third this order was resettled, but no change was made in that part adjudging the defendant to be in contempt and directing his commitment to the common jail. From the resettled order this appeal is taken. It is evident that the order cannot be sustained. It is
In the present case there has never been any service of the order made by the Appellate Division, nor has there been made any demand upon the defendant that he comply with such order. Service was made of the Special Term order, but the papers failed to disclose that any demand was made upon the defendant to pay the money directed to be paid by such order. It is true that the resettled order recites that, “ it appearing to the satisfaction of this court that a personal demand for the alimony and counsel fee herein has been made upon the defendant,” yet a careful examination of the papers recited in the order, as well as the other papers contained in the record, fails to disclose that any such demand was made upon the defendant or that the order of the Appellate Division was ever served upon him. Authority for these proceedings is contained in chapter 17, title 3 of the Code of Civil Procedure.
By the provisions of section 2268 of that chapter it is, among other things, provided that the court must be satisfied by proof, by affidavit, that a personal demand has been made for payment of the sum directed to be paid in the order. There is no affidavit of such fact contained in the present record nor does the recital in the order' adjudging the defendant to be in contempt contain such statement, the recital being “ it appearing to the satisfaction ” of the court, etc. The satisfaction of the court as provided by the Code provision must be had upon an affidavit or other equivalent proof. In this respect the application to punish for contempt is wholly unsupported. It follows that the order should be reversed and the defendant be discharged from custody.
Patterson, O’Brien, Ingraham and McLaughlin, JJ., concurred.
Order reversed and defendant discharged from custody.
