Uttal v. Uttal

of the marriage, and a certified copy of such order was served on defendant personally within this state. On April 2, 1910, defendant was in arrears in payment of the sums required by said order to be paid in the amount of $110. Thereupon plaintiff caused a written demand for payment to be served upon him, and upon affidavits showing the pendency of this action, the granting of said order, due service of a copy thereof and of such demand, and failure on defendant’s part to comply therewith, the court granted an order requiring him to show cause why he should not be punished for contempt. Upon the return day of said order, defendant appeared, but submitted no affidavits in opposition to said motion, nor, so far as the record discloses, was any excuse presented for his disobedience. From the order denying the motion to punish for contempt, this appeal is taken.

Before granting the order to show cause upon which this proceeding is based, it should appear presumptively to the satisfaction of the court granting the same that payment cannot be enforced by sequestration proceedings, or by resorting to the security, if any, given as prescribed in the statute. But such order may be made without any previous sequestration or direction to give security, when the court is satisfied that this will be ineffectual. Code Civ. Proc. § 1773; Conklin v. Conklin, 125 App. Div. 280 , 109 N. Y. Supp. 189 . It does not appear that any security was given in this case, and there is no direct allegation in the moving papers that sequestration would be ineffectual. But it does appear that on the sole ground of defendant’s poverty he was not required to pay any counsel fee, and that for the support of his wife and two children he was only called upon to pay $4 a week. From this fact alone we think that a presumption would arise that defendant had no property which could be reached through a receiver.

It was urged on the argument that the granting or denial of the motion rested in discretion, and that for reasons which do not appear in the record that discretion was wisely exercised at Special Term. It is hardly necessary for us to say that we can consider nothing which does not appear in the record. The order in this case affects a substantial right, and, if it be deemed to rest in discretion, the discretion to be exercised is that of the Supreme Court, “and the Appellate Division is as much a part of the Supreme Court as the Special Term at which the application was made.” Ellensohn v. Keyes, 6 App. Div. 601 , 39 N. Y. Supp. 774 .

The order appealed from should be reversed, with $10 costs and disbursements, and the motion to punish for contempt granted, with $10 costs, and the proceedings remitted to the Special Term to proceed accordingly. All concur.