215 A.D. 316 | N.Y. App. Div. | 1926
The plaintiff sought in the action to obtain a separation from the defendant by reason of his misconduct rendering it unsafe and improper for the plaintiff to live and cohabit with him. In her complaint the plaintiff alleges acts of cruelty upon which she seeks relief. The defendant answered in the action denying the allegation of the complaint charging the defendant with improper conduct toward the plaintiff. The action being at issue, was brought to trial at equity term and the parties appeared in person and by their respective attorneys. At the opening of the trial counsel for the plaintiff stated that the defendant was in arrears in the payment of temporary alimony and was, therefore, stayed. Over the objection and exception of counsel for the defendant, the court held that the defendant was stayed from proving his defense, and that the plaintiff might go ahead and take an inquest, whereupon proofs offered by the plaintiff to establish her cause of action were permitted to be given by the trial court without the production of proof of service of a notice of trial. No proceedings were ever taken to punish the defendant for contempt for failure to make any payments of alimony which he had been ordered to pay. It was stated by counsel for the defendant that plaintiff had waived any stay because of the fact that a default had been taken by the defendant against the plaintiff and the complaint dismissed, and that on plaintiff’s application the defendant consented to restore
I think the judgment should be reversed and a new trial directed. Before one can be punished for a civil contempt a direct proceeding must be taken for that purpose. The Judiciary Law (§ 757) prescribes the procedure for the punishment for a civil contempt. The. proceeding is instituted by an order to show cause or by a warrant to attach the offender. The only punishment that can be visited upon him, if found guilty, is a fine and commitment to jail in default of the payment of the fine imposed. No such proceeding Was ever taken against the defendant. But at the trial, because of his failure to pay the alimony ordered, he was penalized by a denial of the right to appear in defense of plaintiff’s claims. While defendant’s failure to obey the order requiring him to pay the plaintiff alimony pendente lite undoubtedly stayed any affirmative act on his part, the court was without authority to deny the defendant the right to question the sufficiency of the plaintiff’s proofs and to interpose any defense he might have had to plaintiff’s cause of action. The defendant did not bring the action to trial, and took no affirmative action whatever. All the defendant sought to do was to defend himself against plaintiff’s affirmative
The judgment appealed from should be reversed, and a new trial granted, without costs.
Clarke, P. J., Dowling, McAvoy and Burr, JJ., concur.
Judgment reversed and new trial granted, without costs. Settle order on notice.