Brill v. Brill — 148 A.D. 63

Majority

p. 63

Ray B. Brill, Respondent, v. Abraham Brill, Appellant.

First Department,

December 1, 1911.

Headnote

• Husband and wife — failure to pay alimony — acts not impairing rights of wife — contempt.

Although a husband directed by a decree of divorce to pay weekly alimony to his wife for her support and the support and education of their child was guilty of a technical violation of the decree by paying a portion of the sum to his son in order to enable him to continue his education after the wife had refused to permit him to do so and by paying only the balance to the wife, yet his act was not such as to defeat, impair, impede or prejudice the rights of the wife and he should not be punished for contempt.

Dowlistg, J., dissented.

Appeal by the defendant, Abraham Brill, 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 9th day of October, 1911, resettling an order entered on the 22d day of September, 1911, adjudging the defendant guilty of contempt of court in failing to pay the sum of eighty-four dollars alimony and directing that he be committed to jail until he pay said sum or be discharged according to law.

I. N. Jacobson, for the appellant.

Isidor Neuwirth, for the respondent.

The respondent was granted a final judgment of divorce on May 17, 1907, which required the defendant to pay her the sum of forty-five dollars weekly for her support and the support and education of their son. That judgment was modified on June 29, 1908, by striking out the provision for the payment of forty-five dollars a week alimony and substituting in lieu thereof a provision requiring the payment of twenty dollars weekly for the support, maintenance and education of Leighton K. Brill, the son of the plaintiff and the defendant. The defendant paid the twenty dollars weekly to the plaintiff until the fall of 1910, when it appears, without dispute, that the plaintiff desired the son, who was seventeen years of age, to cease going to school and to go to work. The son desired to continue in school for at least another year, but the plaintiff refused to give him any money for car fare and lunches, whereupon the defendant, who wished his son to continue in school, gave him two dollars a week, a very reasonable sum, for car fare and lunches, and paid the balance of the twenty dollars directly to the plaintiff. The plaintiff waited until the arrearages amounted to eighty-four dollars, when she instituted this proceeding.

There can be no doubt but that the defendant has violated the order directing him to pay the sum of twenty dollars weekly to the plaintiff. If the plaintiff failed to properly apply that to the support, maintenance and education of the son,- the defendant should have applied to the court for a modification of the judgment, and, in departing from the plain terms of the judgment, he incurred the hazard of being punished for contempt, even though he acted in good faith. It does not follow, however, that the court was bound to punish him for contempt, and in a proceeding for a civil contempt the court could not even do so without adjudging that the defendant’s disobedience of the order was calculated to, or actually did, defeat, impair, impede or prejudice the rights of the plaintiff. (Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35],. § 770; Fischer v. Raab, 81 N. Y. 235 .) The fine imposed is to indemnify the aggrieved party. (Id. § 773.) Upon the conceded facts, no right or remedy of the plaintiff has been defeated, impaired, impeded or prejudiced. She has not suffered any injury for

p. 65

which she may be indemnified. In the receipt of a weekly allowance of twenty dollars for the support, maintenance and education of a boy seventeen years of age, she should certainly have allowed him to continue in school. The defendant, in technical disobedience of the court’s judgment, has given money directly to the boy which should have reached him through the medium of the mother. But in doing directly what the plaintiff ought to have done herself, the defendant did not defeat, impair, impede or prejudice any right of the plaintiff or injure her in any way.

The order should be reversed and the motion denied, without costs.

Ingraham, P. J., Laughlin and Scott, JJ., concurred; Dowling, J., dissented.

Order reversed and motion denied, without costs.

Cases cited

Fischer v. Raab 81 N. Y. 235 N.Y. 1880-06-01 p. 63

Statutes and regulations cited

Judiciary Law p. 63