111 N.Y.S. 734 | N.Y. App. Div. | 1908
The plaintiff proceeded in accordance with the. provisions of section 2268 of the Code of Civil Procedure, which is a general provision relating to contempts arising out of the neglect or refusal to obey an order of the court requiring the payment of costs or of a specified sum of money and which purports to authorize in such cases, on proof of the facts therein specified, the issue, without notice, of a warrant of commitment.
The question presented, for decision by the appeal is whether the contempt'proceedings in matrimonial actions may be: originated pursuant to the provisions of section' 2268 of the Code of Civil Procedure, or whether their inception is exclusively governed by the provisions of section 1773 of the Code of Civil Procedure, which provides as follows: “ Where the husband makes default in paying any sum of money specified in the last section, as required
. It is to be observed that section 1773 relates specifically to matrimonial actions, and it would seem, upon principle, that since it contains special provisions relating to" this class of actions that it, rather than a section containing provisions relating to actions generally, would govern. It is quite clear that it authorizes, a proceeding for contempt on the facts disclosed by this record, namely, for a failure of a husband to comply with a decree with respect to the payment of alimony. If the Legislature intended to authorize the institution of the. proceeding either by an ex parte application or on an order to show cause, or by attachment,- as provided in sections 2268 and 2269 of the Code of Civil Procedure respectively, then there was no occasion for this special provision in the title relating to matrimonial actions. It would seem, therefore, that the Legislature, by making this special provision relating to this class of actions, intended that it should be exclusive, and if so, it is clear that the proceeding must originate on an order to show cause.
Prior to the incorporation of section 1773 of the Code of Civil Procedure in 1880, there was no separate provision regulating the commencement of contempt proceedings in matrimonial actions, but since these, provisions were inserted they have' been usually, if not uniformly, construed by the courts as exclusive with respect to contempt proceedings in matrimonial actions. (Stanley v. Stanley, 116 App. Div. 544; Sandford v. Sandford, 9 Civ. Proc. Rep. 289; Isaacs v. Isaacs, 10 Daly, 306; Delanoy v. Delanoy, 19 App. Div. 295; Goldie v. Goldie, 77 id. 12; Schweig v. Schweig, No. 2, 122 App. Div. 787.)
It follows that the order should be reversed and motion to vacate the order adjudging the defendant guilty of contempt ancCfirecting his commitment granted, but without costs.
Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.
Order reversed and motion granted, without costs.