Cockefair v. Cockefair — 23 Abb. N. Cas. 219

Majority

p. 219

COCKEFAIR v. COCKEFAIR.

New York Supreme Court, First District, Chambers;

July, 1889.

Headnote

Oontempt; failure to pay costs in matrimonial actions.] Costs-awarded and directed to be paid by judgment in a matrimonial action, can be enforced by proceedings to punish for a contempt, if it appear presumptively to the satisfaction of the court that ' payment cannot be enforced by means of any security given, or by sequestration or execution.^[1]

Motion to punish defendant for contempt.

p. 220

This was an action for a divorce brought by Margaret J. Oockefair against William F. Oockefair, in which the plaintiff recovered and a judgment was entered against the defendant for costs, which the plaintiff’s attorney demanded from the defendant, who failed to comply with the demand.

The plaintiff’s attorney now moved to punish the defendant for contempt.

Charles E. Lansing, for the motion.

Howe & Hummel, opposed

Section 1772 of the Code provides that where a husband fails to give security, or to make payments required by the terms of a judgment or order, or to pay any sum of money which he is required to pay by an order as prescribed in section 1769 of this act, the court may cause his personal property to be sequestered. Section 1769 provides that final judgment may award costs in favor of or against either party, and an execution may be issued for the collection thereof, as in an ordinary case, or direct the costs to be paid out of any property sequestered, or otherwise, in the power of the court. Section 1773 determines when and under what circumstances default in paying money as required by a judgment or order can be enforced by punishment for contempt. The note of the codifiers, as it appears in Throop’s Code, states that this section is new, and was added for the purpose of settling the question whether non-payment of costs or alimony in an action for divorce can be punished as a contempt. In the absence of any authority brought to my notice holding to the contrary, I am inclined, from a reading of the sections quoted, to conclude that in a proper case where costs are awarded and directed to be paid by a judgment, that they can be enforced by proceedings to punish for contempt, but upon such a proceeding, either to pay money for the maintenance or education of the children, or for the support of the wife, or

p. 221

for costs directed to be paid by a judgment, section 1773 requires that it must appear presumptively to the satisfaction of the court that payment cannot be enforced by means of resorting to any security given, or by sequestration proceedings, or by issuing an execution. .

No affidavit having been furnished upon this application from which it is made to appear that payment cannot be enforced by the means enumerated, the motion, for that reason, must be denied, but without hosts and with leave to renew on proper papers.