Kuhn v. Kuhn — 4 N.Y.S. 952

Majority

p. 952

Kuhn v. Kuhn.

(Supreme Court, General Term, First Department.

March 29, 1889.)

Headnote

Contempt—Procedure.

An order made after proper notice, requiring a husband to pay to his wife certain arrears of alimony pendente lite, within a given number of days, and providing that upon non-compliance an order of arrest and commitment for contempt of court might issue, is not erroneous, under Code Civil Proc. If. Y. § 2281, relating to contempts, and providing that, “if it is determined that the accused has committed the offense charged, and that it was calculated to or actually did impede * *. * the rights of a party to the action, ” a final order shall be made for his punishment; as it is not a final order made after the determination of the facts mentioned, but another order is required for a commitment, upon the application for which such facts can be determined.

Appeal from special term, Hew York county.

Action to annul a marriage brought by Gustave Kuhn, by his guardian ad Utkin, Otto Kuhn, against Annie J. Kuhn. From an order directing plaintiff’s arrest and commitment for contempt of court, in case of his failure to pay certain arrears of alimony, he appeals. Code Civil Proc. § 2281, relating to contempts, provides that if it is determined that the accused has commit

p. 953

ted the offense charged, and that it was calculated to or did actually impede * * * the rights of a party to the action,” the court shall make a final order for his punishment, and a warrant shall issue accordingly.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

August P. Wagener, for appellant. P. P. Trautman, for respondent.

An order was made in this action requiring the plaintiff to pay to the defendant alimony at the rate of $4 per week, and the amount, upon his failure to comply with the order, had accumulated to @44 on the 25th of August, 1888. On the 29th a demand was made for the sum mentioned by a person duly authorized to make it, on which occasion the plain tiff admitted that that amount was due. Thereafter an order was made on a proper procedure for that purpose, requiring the plaintiff to pay the sum mentioned within five days from the service of a copy of the order, and providing that if he should fail to comply with the condition in the order by not paying the amount mentioned within the time specified a commitment might issue to the sheriff of the county of New York, directing and requiring him to arrest the plaintiff in this action, and to punish him for his contempt herein. Two objections were interposed to the propriety of this order,—one was that there was no demand made of the money admitted to be due, as already suggested; and the other was that there had been no determination under section 2281 of the Code that the failure to comply with the order was calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of the defendant, which was indispensably necessary, as contended prior to the issuance of a commitment.

Embarrassment in considering and disposing of this appeal arises only from the peculiar character of the order appealed from. Indeed, regarded as a final determination authorizing the commitment, it is imperfect, for the reason that it does not comply with the requirements of section 2281, as suggested. But it would seem to have been impossible for the learned justice, presiding in the court below, to have made such a determination, for the reason that he had given the plaintiff five days after the service of the order upon him within which to pay the same, and a failure to pay it within that time would therefore require the further order of the court to justify a process of commitment; and on that application the court could determine whether or not there had been, as required by section 2281, such conduct as was calculated to, and actually did, defeat, impair, impede, or prejudice the rights of the defendant. Inasmuch as the order directed the payment of the alimony in five days, and the defendant might within that period pay the amount directed to be paid, the order must be regarded only as a final determination of the indebtedness, with the suggestion that a commitment might issue in case of the failure of the plaintiff to pay as required. There was abundant evidence to justify such an order, and it must therefore be affirmed, with costs. Ordered accordingly. All concur.