172 Misc. 630 | N.Y. Sup. Ct. | 1939
In an action for separation brought by plaintiff, an order of this court entered January 24, 1939, directed defendant to pay the sum of $160 per month temporary alimony and $150 counsel fee. He has paid nothing by way of counsel fee, and is in arrears $550 in alimony. Plaintiff now brings three motions: (1) To punish defendant for contempt; (2) to amend the complaint, etc.; (3) to direct his employer to deduct alimony from defendant’s salary.
(1) The motion to punish for contempt, though unopposed, must be denied. The defendant follows the sea, and apparently does not come into the jurisdiction of this court. Plaintiff’s counsel recognized, as he states in his brief, that “ Contempt proceedings against the defendant are fruitless, at least for the time being, because he is out of the State and on the high seas.” It has been held, under such circumstances, that a contempt order should not be granted, as “ the court will not do a futile thing.” (Wulff v. Wulff, 151 App. Div. 22.) Moreover, the order to show cause herein required service of a certified copy “ upon the defendant.” The affidavit of service by the plaintiff shows service by leaving the papers in a sealed envelope addressed to defendant, at his employer’s office, which was closed at the time. Such service is insufficient. (Rules Civ. Prac. rule 20.)
(2) The motion to amend the complaint and to enjoin defendant and the sheriff of Queens county with respect to an action brought by the defendant in Texas, must also be denied, though defendant does not oppose. What plaintiff seeks is to join an injunction action with a separation action in a supplemental (not an amended) complaint. But, again, the service is made by the plaintiff on seven days’ notice to the defendant, in the same manner as aforesaid. This is insufficient. (Rules Civ. Prac. rules 20, 60.) Moreover, the sheriff has had no notice of this motion.
(3) Motion for an order directing defendant’s employer to deduct $160 per month from the defendant’s wages. Here, likewise, the defendant does not oppose, but service upon him is likewise defective inasmuch as it is made by the plaintiff in the same manner as aforesaid, and only six days before the return day. Furthermore, the employer, to whom the notice of motion is also addressed, appears in opposition and questions .the jurisdiction of this court over it (Valentine v. Williams, Inc., 223 N. Y. 574.) Moreover, I know
