Pelz v. Pelz — 182 A.D. 923

Majority

p. 923

Second Department,

February, 1918.

Anna R. Pelz, Respondent, v. Carl E. Pelz, Appellant.

Headnote

Contempt —fugitive from justice.

Appeal by the defendant from an order of the Supreme Court, made at the Westchester Special Term for Motions and entered in the office .of the clerk of the county of Westchester on the 1st day of October, 1917, granting the plaintiff’s motion to punish the defendant for contempt of court.

We reverse the order, -without costs, and deny the motion to punish the defendant for a contempt, without costs, first, on authority of Moore v. Moore ( 142 App. Div. 459 ) and People ex rel. Ready v. Walsh (132 id. 462 ); and second, on authority of Wulff v. Wulff (151 id. 22), inasmuch as the record indicates that defendant is a fugitive, and “ the court will not do a futile thing.” Thomas, Mills and Putnam, JJ., concurred; Jenks, P. J., and Rich, J., concurred upon the second ground only, and dissented from the first ground, upon the dissenting opinion of Laughlin, J., in Moore v. Moore (supra). Order reversed, without costs, and motion to punish defendant for contempt denied, without costs, first, on authority of Moore v. Moore ( 142 App. Div. 459 ) and People ex rel. Ready v. Walsh (132 id. 462 ); and second, on authority of Wulff v, Wulff (151 id. 22), inasmuch as the record indicates that defendant is a fugitive, and “ the court will not do a futile thing.”