188 A.D. 470 | N.Y. App. Div. | 1919
Mary O. Curtis was, at one time, the wife of Philip Curtis. She procured a judgment against him for divorce, by which he was required to pay to her $250 a month alimony. At the time of his death there was due and unpaid of said alimony $17,675. The estate amounted to about $9,000. The claims against the estate, exclusive of her claim, amount to over $50,000. If her claim for preference be allowed, her claim will absorb all of the estate. In Thayer v. Thayer (145 App. Div. 268), wherein the plaintiff had procured a judgment against the defendant granting to her alimony which was unpaid, the defendant appealed from an order directing the clerk to docket as a judgment the amount due from the defendant to the plaintiff for unpaid alimony awarded by the final decree of divorce. The court there held that the accrued alimony is in the nature of a judgment debt against the husband and that the wife might make application that the unpaid installments be docketed as a judgment and that the order granting the motion was not a new judgment for the amount, but merely the means of putting into practical effect the plaintiff’s right to have her judgment in such form that an execution may be issued. In Matter of Donovan (159 App. Div. 228) it was held that a wife who had obtained a final decree of separation from her husband, awarding alimony, and had failed to collect the same by contempt proceedings, might docket a judgment for the amount due, and after the return of an execution unsatisfied, she was entitled to supplementary proceedings. Justice Clarke, now the presiding justice, after referring to the facts, said: “ Of course this judgment is made in the action and, though an order intervene, is upon the original service of the summons and complaint therein.” In Matter of Williams (152 App. Div. 385) the wife
Clarke, P. J., Latjghlin, Merrell and Philbin, JJ., concurred.
Decree modified as directed in opinion and as modified affirmed, with costs to appellant payable out of the estate. Order to be settled on notice.