Majority
p. 298PRITCHARD v. PRITCHARD. N. Y. Supreme Court, First Department; Chambers, June, 1878.
Headnote
Attachment for Non-Payment of Counsel Fees, &g., in Divorce. —Code of Civ. Pro. § 1341, sued. 4.When the prevailing party in a divorce suit is awarded costs, disbursements, and a counsel fee, and the defeated party refuses to pay the same, an attachment as for a contempt may be issued against the latter after the return of an execution unsatisfied.
Application for attachment as for a contempt.
This was an action in the city of Hew York by Mary Pritchard against Richard H. Pritchard for absolute divorce. Judgment was duly rendered on
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defendant’s default, to the plaintiff, for absolute divorce ; and an allowance of $150 counsel fee, with costs and disbursements, was granted to the plaintiff’s counsel.
A transcript of the judgment for said counsel fee, costs and disbursements, was duly filed in Kings county, where the defendant resided, and an execution issued to. the sheriff of that county, to whom was also given for service on the defendant a sealed and certified copy of the judgment of divorce. This was served upon the defendant by - the deputy-sheriff, when he called upon him to make a levy of the execution. The defendant refused to pay the judgment, and the execution was returned unsatisfied.
The plaintiff’s attorney afterwards called upon the defendant, and served upon him a certified copy, sealed,' of the judgment for counsel fee, costs and disbursements, and a certified copy of the bill of costs, as taxed, and demanded payment, but he absolutely refused to pay.
Thereupon, and on affidavits setting forth the above facts, the plaintiff’s attorney applied to Lawrence, J., without argument, for an attachment against defendant’s person, for refusing to pay the said judgment.
The papers were returned with a memorandum that counsel fee having been provided for in the judgment by execution, the application was denied, and referred to Miller v. Miller, 7 Hun, 208 .
Plaintiff’s counsel then applied for a rehearing.
John A. Foster (Isaac G. Boyce, attorney),
urged, that the case of Miller v. Miller, supra, was not applicable to this case since the adoption of the Code of Civ. Pro., and that under section 1241, subdivision 4, the order should be granted, and cited Howe v. Howe, 5 Weekly Dig. p. 460.
When this application was first presented to me, my attention was not called to the provisions of section 1241 of the Code of Civil Procedure, nor to the case of Howe v. Howe, 5 Weekly Dig. p. 460. Under that section it would appear that the plaintiff’s counsel is right in contending that where a counsel fee, disbursements and' costs, are awarded to the plaintiff’s attorney in the final decree on an action for divorce, they may be enforced by attachment, particularly where an execution therefor has been returned unsatisfied. And see Mr. Throop’s note to section.