Kalmanowitz v. Kalmanowitz — 108 A.D. 296

Majority

p. 296

David Kalmanowitz, Appellant, v. Annie Kalmanowitz, Respondent.

Headnote

Bemand for alimony—when, made by the wife’s attorney, without evidence of his authority to receive it, it isinsufficient — when an attorney’s authority ceases.

Where a judgment of limited divorce directs the husband, the plaintiff in the action, to pay his wife, the defendant in the action, a specified sum weekly as " alimony, a demand for the payment of such alimony made upon the husband by the wife’s attorney in the action, who, at the time of malting the demand,

p. 297

did not exhibit to the husband any authority from the wife to make the demand or receive the alimony, is not sufficient to authorize the institution of contempt proceedings against the husband. .

Semble, that the authority of the attorney to represent the wife ceased upon the entry of the judgment.

. Appeal by the plaintiff, David Kalmanowitz, from an order of the Supreme Court, made at the New York Special, Term and entered in the office of the clerk of the county of New York on the 10th day of July, 1905, adjudging the plaintiff in contempt of court for a failure to make payments of alimony as directed by a final judgment theretofore entered in the action.

August P. Wagener, for the appellant.

This proceeding is based upon a final judgment in favor of the defendant against the plaintiff, granting a limited divorce, which was granted upon default and which, among other things, required the plaintiff to pay to the defendant five dollars a week alimony. The affidavit alleged that the plaintiff had failed to pay the alimony due prior to the 29th day of J une, 1905, there being on that day three payments of five dollars each due under the judgment. There is annexed to the moving papers an affidavit of the attorney for the defendant, who-says that on the 13th day of June, 1905, he served a certified copy of the judgment of separation in this action upon the plaintiff; and in another affidavit verified on the thirtieth of June, the same attorney says that on the 23d day of June, 1905, he demanded payment of the alimony of the plaintiff, which the attorney told the plaintiff was at that .time ten dollars for two weeks’ alimony, and that the plaintiff refused to pay. I think this demand was insufficient to justify a commitment for contempt. There is no allegation that this attorney was authorized to make this demand on behalf of the defendant, nor that the person making the demand exhibited- to the plaintiff his authority to receive the alimony on behalf of the defendant. The attorney’s power to represent the defendant ceased upon the entry of judgment. A copy of the judgment is not made a part of the papers on appeal, but certainly the plaintiff was not bound to pay alimony due to the defendant to any person who should meet him and ask him for it, and I do

p. 298

not think he can be put in default until a formal demand is made on behalf of the defendant by some one authorized to make the demand and to receive the money. It also appears that the order committed the plaintiff for contempt for failing to pay fifteen dollars alimony, although the only demand set forth was that to which attention has been called and which was a demand for ten dollars.

I think the order' appealed from should be reversed and the motion denied.

O’Brien, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.

Order reversed and motion denied.