Stewart v. Stewart — 127 A.D. 724

Majority

p. 724

Emma B. Stewart, Respondent, v. William J. Stewart, Appellant.

First Department,

July 8, 1908.

Headnote

Husband and wife.— contempt for failure to pay alimony—procedure — section 1773, Code Civil Procedure, governs—when court may vacate unauthorized order — payment under duress.

Section 1773 of the Code of Civil Procedure, regulating proceedings to punish a defendant for contempt for failure to pay alimony, is exclusive, and a plaintiff should proceed thereunder rather than under section 2268, relating to contempts in general.

p. 725

It follows that a proceeding to punish for contempt for failure to pay alimony must originate on an order to show cause.

Although a court order cannot be reviewed by a court of co-ordinate jurisdiction, yet an order punishing a defendant for contempt in failing to pay alimony made by a judge or court without authority and without notice, may be vacated by the court on notice.

A defendant who pays alimony after having been arrested under a void order adjudging him in contempt pays under duress and is not estopped from moving to vacate the order.

Appeal by the defendant, William J. Stewart, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 21st day of Hay, 1908, denying the defendant’s motion to vacate .an ex parte order made at the Yew York Special Term and entered in said clerk’s office on the 24th day of April, 1908, adjudging him guilty of contempt in failing to pay alimony, and directing that a warrant issue for his arrest and that he be confined in the county prison .of the county of Yew York until.he pays the sum of thirty dollars, being the installment of alimony due, and ten dollars costs of the motion, together with the sheriff’s fees, or until he should be discharged pursuant to law.

Harry G. Kayser, for the appellant.

Edwin F. Stern [Francis W. Russell with him on the brief], for the respondent.

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

p. 726

by the judgment or order, directing the payment thereof; and it appears presumptively, to the satisfaction of the court, that payment cannot be enforced by means of the proceedings prescribed in the last section, or by resorting to the security, if any, given as therein prescribed, the court may, in its discretion, make ■ an order requiring the husband to show cause before it, at a time and place therein specified-, why he should not be punished for his failure to make1 the payment; and thereupon proceedings-must be taken to punish him, as prescribed' in title third of chapter seventeenth of this act. Such an order to show cause may also be made, without any previous sequestration, or direction to give security, where.the court is satisfied that they would be ineffectual.”

. 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 .)

p. 727

Counsel for respondent argues that since the order adjudging the defendant guilty of contempt was a court order and not a judge’s order, it could not be reviewed by a court of co-ordinate jurisdiction. If the order were authorized by law, doubtless that objection would be unanswerable; but an order made by a judge or court without authority and without notice, may and should be vacated by the court on notice. There being no authority to issue a commitment until after notice to the defendant by an order to show cause, the order, which the defendant moved to vacate was a nullity and should have been vacated. The fact that the defendant, after having been arrested under the order, paid under duress to obtain his liberty the amount does not debar him of the right to have the order vacated.

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.

Cases cited

Delanoy v. Delanoy 19 App. Div. 295 N.Y. App. Div. 1897-06-18 p. 726