95 N.Y.S. 627 | N.Y. App. Div. | 1905
This proceeding is based upon a final judgment in favor of the defendant against the plaintiff, granting a limited divorce, which was granted upon default and which, among other things, required the plaintiff to pay to the defendant five dollars a week alimony. The affidavit alleged that the plaintiff had failed to pay the alimony due prior to the 29th day of J une, 1905, there being on that day three payments of five dollars each due under the judgment. There is annexed to the moving papers an affidavit of the attorney for the defendant, who-says that on the 13th day of June, 1905, he served a certified copy of the judgment of separation in this action upon the plaintiff; and in another affidavit verified on the thirtieth of June, the same attorney says that on the 23d day of June, 1905, he demanded payment of the alimony of the plaintiff, which the attorney told the plaintiff was at that .time ten dollars for two weeks’ alimony, and that the plaintiff refused to pay. I think this demand was insufficient to justify a commitment for contempt. There is no allegation that this attorney was authorized to make this demand on behalf of the defendant, nor that the person making the demand exhibited- to the plaintiff his authority to receive the alimony on behalf of the defendant. The attorney’s power to represent the defendant ceased upon the entry of judgment. A copy of the judgment is not made a part of the papers on appeal, but certainly the plaintiff was not bound to pay alimony due to the defendant to any person who should meet him and ask him for it, and I do
I think the order' appealed from should be reversed and the motion denied.
O’Brien, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.
Order reversed and motion denied.
