Hyperlawhypertext legal database Wulff v. Wulff 133 N.Y.S. 807

← Cases

Wulff v. Wulff

133 N.Y.S. 807 Court N.Y. Sup. Ct. English

Delivered by KAPPER, J.

Contents

Majority

p. 807
(74 Misc. Rep. 213.)
WULFF v. WULFF.
(Supreme Court, Special Term, Kings County.
November, 1911.)

Headnote

1. Divorce (§ 269[1] )—Proceedings to Punish—Service of Notice.
After final judgment, contempt proceedings in a matrimonial action cannot be instituted without service of the order to show cause upon the husband personally.
[Ed. Note.—For other cases, see Divorce, Dec. Dig. § 269.*]
2. Attorney and Client (§ 70*)—Authority of Attorney—Presumption.
There is no presumption that the attorney who appeared for defendant prior to final judgment had authority to appear in subsequent proceedings.
[Ed. Note.—For other cases, see Attorney and Client, Dec. Dig. § 70.*]
Action by Samuel Wulff against Meta Wulff. On motion ,by. defendant to punish for contempt for nonpayment of counsel fees and alimony.
Denied.
Jones, McKinny & Steinbrink, for the motion.

[1] Weich v. Weich, 59 Misc. Rep. 238 , 110 N. Y. Supp. 201 , and Carr v. Carr, 64 Misc. Rep. 435 , 118 N. Y. Supp. 625 , holding that service of the order to show cause upon the husband’s attorney, only, was sufficient to put him in contempt for nonpayment of alimony, so far as appears from the 'reports, were both cases of proceedings before final judgment. After final judgment, however, I think that contempt proceedings in a matrimonial action cannot be instituted without service of the order to show cause upon the husband personally. Keller v. Keller, 100 App. Div. 325 , 91 N. Y. Supp. 528 .

[2] In the case at bar, service of the order to show cause was directed to be made upon the attorney who appeared for the husband in the action. Said attorney appeared in response to the order to show cause and stated that he was without authority to appear on this motion. As was said in the Keller Case, supra, 100 App. Div. 331 , 91 N. Y. Supp. 533 :

“There is no presumption that the attorney who had appeared for the defendant in the action prior to the final judgment had authority to appear in subsequent proceedings.”

The motion must be denied.

Motion denied.

Cases cited