Wallace v. Wallace — 125 N.Y.S. 561

Majority

p. 561

WALLACE v. WALLACE.

(Supreme Court, Appellate Division, Third Department.

November 16, 1910.)

Headnote

1. Divoece (§ 269^[1] )—Alimony—Enfobcehent—Contempt.

Where, in an action for separation, an order discontinuing payment of alimony by defendant having been appealed from and reversed, and a demand made on defendant for unpaid alimony,"which was refused, it was error to refuse a motion to punish him for contempt.

[Ed. Note.—For other cases, see Divorce, Cent. Dig. g§ 756, 760; Dec. Dig. § 269.*]

2. Divoece (§ 287*)—Appeal—Disposition of Cause—Rendition of Final

Judgment.

Where, on appeal from an order refusing a motion to punish defendant for contempt in not complying with an order requiring payment of alimony, no opposing affidavits were presented in the court below and there was no question of fact, the Appellate Division may make- the determination which should have been made at Special Term.

[Ed. Note.—For other cases, see Divorce, Cent. Dig. § 771; Dec. Dig. g 287.*]

Appeal from Special Term, Albany County.

Action for separation by Mary Wallace against Patrick H. Wallace. From denial of a motion to punish defendant for contempt in not complying with an order to pay alimony, plaintiff appeals.

Order reversed, and motion granted.

See, also, 137 App. Div. 936 , 122 N. Y. Supp. 1149 .

Argued before SMITH, P. J., and KELLOGG, COCHRANE, SEWELL, and HOUGHTON, JJ.

John W. Roddy, for appellant.

James R. Stevens, for respondent.

In this action for a separation defendant had been ordered to pay the plaintiff his wife $4 a week alimony. On his motion an order was subsequently made discontinuing the payment of such alimony. This last-mentioned order, on appeal to this court, was reversed, and the motion denied. Thereupon, after service of proper papers and a demand of the defendant for the unpaid alimony, amounting to $64, which was refused, a motion was made by plaintiff to punish the defendant for contempt in not complying with the order requiring the payment of such alimony. This "motion was denied, and the plaintiff appeals.

The motion should have been granted. No opposing affidavits were presented in the court below. There is no question of fact. This court may make the determination which should have been made at Special Term. The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs; and a determination is hereby made that the defendant has committed the offense charged, and that it was calculated to and actually did defeat, impair, impede, and prejudice the rights of the plaintiff, and that for such misconduct the defendant pay a fine of $64, and in addition thereto the said costs and disbursements, and that he be imprisoned "until such fine is paid. All concur.