Hyperlawhypertext legal databasebeta Weich v. Weich 59 Misc. 238

← Cases

Weich v. Weich

59 Misc. 238 Court N.Y. Sup. Ct. English

Delivered by Stapleton, J.

Contents

Majority

p. 238
Annie Weich, Plaintiff, v. Joseph Weich, Defendant.
(Supreme Court, Queens Special Term,
May, 1908.)

Headnote

Judges'—Powers, duties and liabilities — Powers in chambers and out of court — Motions and orders — Orders to show cause.
An order requiring a husband to show cause why he should not be punished for his failure to pay a sum of money, which he is required to pay by a judgment rendered or an order made in an action for divorce or separation, must be made by the court; and an order adjudging the defendant guilty of contempt and committing him to the common jail, founded upon an order to show cause made by a judge, is without jurisdiction and void.
Motioh to vacate order adjudging defendant guilty of contempt of court and for his discharge from custody.
James M. Seaman, for motion.
Rawdon W. Kellogg, opposed.

The defendant, who was adjudged guilty of contempt and committed to jail for disobedience to an order requiring him to pay alimony pendente lite, moves to

p. 239
vacate the order adjudging him guilty and for his discharge from custody.

It appears he was personally served with the order for disobedience of which he was punished, but that he was not served personally, although his attorneys were, with the order requiring him to show cause why he should not be adjudged guilty of contempt.

There is a conflict of authority. In Goldie v. Goldie, 77 App. Div. 12 , it was held that service of the order to show cause upon the attorney for the party was insufficient, and that personal service of that order was indispensable.

In Grant v. Greene, 121 App. Div. 756 , it was held that service upon the attorney satisfied the Code requirements.

The weight of precedent sustains the latter view. Pitt v. Davison, 37 N. Y. 235 ; Rochester Lamp Co. v. Brigham, 1 App. Div. 490 . And I am constrained to hold that service upon the attorney for the defendant was sufficient.

I perceive, however, that the order to show cause was a judge’s order; and section 1773 of the Code of Civil Procedure, which governs matrimonial actions (Stanley v. Stanley, 116 App. Div. 544 ), confers the power to grant such an order explicitly upon the court.

The order adjudging the defendant guilty of contempt and committing him to the common jail, founded upon the unauthorized order to show cause, was without jurisdiction and void. Mann v. Tyler, 6 How. Pr. 235 .

The order should be vacated and the defendant discharged.

Motion granted.

Cases cited