122 N.Y.S. 9 | N.Y. App. Div. | 1910
Lead Opinion
Appeal -from order staying all proceedings on the part of defendant. The action was begun October. 2, 1908, for a separation. Defendant answered denying the allegations of the complaint and counterclaiming for a separation on his part. On October 29,1908, an order was made directing defendant to pay forty dollars counsel fee and six dollars per-week alimony. He paid a part of the counsel fee and paid alimony -until January 25, 1909, when he ‘ceased paying. On March 30, 1909, defendant was adjudged guilty of contempt and sentenced to imprisonment. He remained iii jail until July 1,1909, when he was discharged under section 111 of the Code of Civil Procedure, having served three months. The action is on the calendar and has been called twice, having been put over each time on account of plaintiff’s condition of health. On January.26, 1910, by permission of the court, defendant served an amended
Under section .111 of the Code, defendant, having served the statutory period in jail for non-payment of alimony, cannot be rearrested even for alimony subsequently accruing. ( Winton v. Winton, 53 Hun, 4; affd., 117 N. Y. 623.) The plaintiff, however, is entitled to pursue any other remedy, even to stay affirmative action on-defendant’s part in the case. (Sibley v. Sibley, 76 App. Div. 132; Harney v. Harney, 110 id. 20.) lie may not, however, even for a contempt be deprived of an opportunity to defend himself against plaintiff’s attack. (Hovey v. Elliott, 167 U. S. 409.)
The order was, therefore, properly granted assuming, as we do, that its only effect is to restrain defendant from taking any step to enforce his counterclaims, leaving him free to meet and contest any . attempt on the part of plaintiff to enforce the cause of action set forth in her complaint. To resolve any doubt there may be as to the construction of the order it may be so modified as to limit its effect to proceeding on the part of defendant to enforce the counterclaims set forth in his amended answer, and as so modified affirmed, with ten dollars costs and disbursements to respondent.
Ihgbaham, P. J., Claeke and Milleb, JJ., concurred; Laughlih, J., dissented.
Dissenting Opinion
The questions presented for decision on this appeal are whether in an action for separation which is based op. the marriage contract the defendant, who is in contempt of court for failing to obey an order for the ■ payment of alimony, may be stayed or should, be stayed from offering proof of a counterclaim duly and timely' pleaded for an annulment of the marriage. Quite likely such a counterclaim is not authorized (Taylor v. Taylor, 25 Misc. Rep. 566; affd., without opinion, 68 App. Div. 638; Conrad v. Conrad, 124 id. 780), but the Court of Appeals has not yet passed upon that question and the defendant should be left in a position to raise it by offering his evidence upon the trial. The order was not made upon the theory that the counterclaim was not authorized, and mani- 1 festly that question cannot be. thus raised. The order appears to
I am of opinion, therefore, that neither the Special Term nor this court- can lawfully make an order which permits the plaintiff to move the trial of the cause, and precludes the defendant from being heard upon or-offering evidence to sustain his counterclaim, and that if authority so to do were vested in the court, it should not have been so exercised.
I,-therefore, vote to modify the order so that it will merely stay ' affirmative 'action by the defendant in moving, the cause for trial or
Order modified as directed in opinion and as modified affirmed, with ten dollars costs and disbursements to respondent. Settle order pn notice.
