People ex rel. Ready v. Walsh — 132 A.D. 462

Majority

p. 462

The People of the State of New York ex rel. William B. Ready, Respondent, v. Thomas F. Walsh, Sheriff of Onondaga County, Respondent. Nora G. Ready, a Person Interested, Appellant.

Fourth Department,

May 5, 1909.

Headnote

Husband and wife—failure to give security for payment of alimony— contempt — habeas corpus — discharge after three months’ imprisonment.

The defendant in an action for divorce who has failed to pay alimony, while punishable for contempt for such failure, cannot be held in contempt for failing to secure payment by the execution of an undertaking as ordered.

The enforcement of the payment of alimony in matrimonial actions is governed by sections 1772 and 1773 of the Code of Civil Procedure. The remedy is exclusive and the other provisions of the Code relating to punishment for a failure to obey mandates of the court have no application.

p. 463

Where a husband has been imprisoned for three months for failure to pay alimony in an amot/nt less than $500, he is entitled to a discharge on a writ of habeas corpus pursuant to section 111 of the Code of Civil Procedure.

Appeal by Hora G-. Ready, a person interested, from an order made by a justice of the Supreme‘Court and entered in the office of the clerk of the county of Onondaga on the 18th day of January, 1909, discharging the relator from the custody of the sheriff of Onondaga county in a habeas corpus proceeding.

The appellant commenced an action in the Supreme Court against her husband, the relator, and judgment for a separation was rendered in her favor and entered in the Onondaga county clerk’s office on the 15th day of July, 1907, directing, among other things, that the relator pay to his wife the sum of $15 per week and within twenty days after entry and service of a copy of the decree that he execute and deliver to her, with sufficient surety or sureties, a bond or undertaking in the penalty of $2,500, in the usual form, conditioned that he pay the said $15 weekly, the bond to be approved as to its form and sufficiency by the court or a judge thereof.

On the 10th day of October, 1908, an order was made adjudging the relator guilty of contempt of court for his failure to pay his wife the- sum* of $30 alimony, and to execute and deliver the bond, ■fining him the said sum of $30, besides $1.97 costs and sheriff’s fees, and the further sum of $2,500, the amount of the bond, and directing that a warrant of attachment issue for his arrest, committing him until lie paid the fine of $31.97, and also paid the further fine of $2,500, or executed the bond. A warrant of attachment was issued accordingly, and the relator taken into custody by the sheriff and committed to the jail of Onondaga county. He did not pay the fines or execute the bond.

After his imprisonment for three months a writ of habeas corpus was issued upon the relator’s petition, and upon the return thereof an order was made discharging the relator from imprisonment upon the ground that the court had no authority to punish the relator for the failure to give the bond.

The sheriff does not appeal, hut the wife, having appeared upon the proceeding and objected to the relator’s discharge, appeals from the order.

Walter Welch, for the appellant.

p. 464

Francis J. Lynch, for the relator, respondent.

Ernest I. Edgcomb, for the defendant, respondent.

Upon the failure of the relator to give th;e bond or pay the alimony, as the judgment directed, the wife was entitled to an order causing his personal property, and the rents and profits of his real' estate, to be sequestered to enforce payment of her alimony. (Code Civ. Proc: § 1772.) She could also, for his failure to pay the alimony, take proceedings to punish him for contempt, if it was made to appear presumptively to the satisfaction of the court that payment cannot be enforced by means of the sequestration proceeding or by resorting to the, security, (Code Civ. Proc. § 1773.) But we think the relator cannot be punished for contempt in failing to execute the bond.

The amount of the alimony, for non-payment of which the relator was committed, was less than $500, and he had been imprisoned three months. He was, therefore, properly discharged 1 upon the writ of habeas corpus, since the Code provides that in such cases no person shall be imprisoned for a longer period than three months. (Code Civ. Proc, § 111.)

There are other provisions of the Code which- provide for punishing the disobedience of lawful orders and mandates Of the court and non-compliance with its judgments (Code Civ. Proc. §§ 14, 1241, 2266), but they do not apply to the enforcement of the. judgment for the giving of security in a> matrimonial action. Special provision is made for the enforcement of orders and judgments in-such actions, as regards the payment of alimony and giving of security, by the sections of the Code referred to (§§ 1772, 1773), and the remedy there provided for, for enforcing the provisions of the decree requiring the giving of security, we think, is exclusive. (Stewart v. Stewart, 127 App. Div. 721 .) -Whether the wife has-availed herself of that remedy does not appear, either by a recital in the orders or otherwise; but whether she has or not, that, I think, is her only remedy for the enforcement of the provision, of the judgment requiring the relator to execute the bond.

The order should, therefore, be affirmed.

All concurred.

Order affirmed, without costs.