5 N.Y.S. 537 | N.Y. Sup. Ct. | 1889
The defendant was arrested and imprisoned for the non-payment of alimony previously accruing, directed to be paid to the plaintiff by the judgment. He remained in prison under the commitment for that default in payment for the full term for which he could be imprisoned under section 111 of the Code of Civil Procedure; and it is because of that cireum•stanee that this proceeding has been resisted for his imprisonment again for the non-payment of other sums of money afterwards becoming due under the judgment. It was the object of this section of the Code, as it was enacted in 1883, to prevent the abuses which were considered to have arisen in the imprisonment of persons in civil actions, under the law as it previously existed. And by this section the time for which a person may be imprisoned under an execution or other mandate to enforce the recovery of a sum of money has been declared and restricted, and the section has been so framed as expressly to include “a commitment upon a fine for contempt of court in the non-payment of alimony, or counsel fees, in a divorce case. ” ' Then it has prescribed the length of time to which the imprisonment may be extended for such nonpayment. And the section has further and finally declared, that “the prisoner shall not be again imprisoned upon a like process issued in the same action, or arrested in any action upon any judgment under which the same may have been granted. ” This language, in its application to this ease, is broad and plain, forbidding a further imprisonment upon a like process issued in the same action; and it has direct reference to the imprisonment previously authorized and sanctioned by this section, and by its meaning and import restricts and limits the imprisonment to what has been before provided for and described. If that is not to be the effect of this concluding language of the. .section, then it has accomplished nothing for the relief of persons imprisoned in an action for a divorce; for, as the law previously existed, where a person had been imprisoned for a contempt for the non-payment of a sum of money, and had been discharged from imprisonment by the court for his inability to ■comply with the order, he could not afterwards be arrested and imprisoned for the same default. There was no necessity for legislation to secure relief in that respect, for if the person could not endure the imprisonment, or his -circumstances were such that he could not comply with the order for the payment of the money, and the court terminated and relieved him from impris