Cockefair v. Cockefair — 7 N.Y.S. 170

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Cockefair v. Cockefair.^[2]

(Supreme Court, Special Term, New York County.

July, 1889.)

Headnote

Divorce—Failure to Pay Costs—Contempt.

Code Civil Proc. N. T. § 1773, provides that when the husband, in a proceeding for a divorce, fails to pay any money required to be paid by an order, and it appears to the court that payment cannot be enforced by execution, sequestration, or resorting to his security, he may be punished for contempt. Held that, in the absence of affidavits showing that payment cannot be enforced by the other means, the husband will not be punished for contempt in failing to pay costs decreed against him.

At chambers. On motion to punish defendant for contempt.

Action for a divorce by Margaret J. Cockefair against William F. Cockefair. Plaintiff recovered, and a judgment was entered against defendant for costs, which he failed to pay. Plaintiff now moves to punish defendant for contempt.

Charles B. Lansing, for plaintiff. Howe & Hummel, for defendant.

Section 1772 of the Code provides that where a husband fails

to give security, or to make payments required by the terms of a judgment or order, or to pay any sum of money which he is required to pay by an order as prescribed in section 1769 of this act, the court may cause his personal property to be sequestered. Section 1769 provides that final judgment may award costs in favor of or against either party, and an execution may be issued for the collection thereof, as in an ordinary case, or direct the costs to be paid out of any property sequestered, or otherwise in the power of the. court. Section 1773[1] determines when and under what circumstances default in paying money as required by a judgment or order can be enforced by punishment for contempt. The note of the codifiers, as it appears in Throop’s Code, states that this section is new, and was added for the purpose of settling the question whether non-payment of costs or alimony in an action for divorce can be punished as a contempt. In the absence of any authority brought to my notice holding to the contrary, I am inclined, from a reading of the sections quoted, to conclude that in a proper case, where costs are awarded and directed to be paid by a judgment, they can be enforced by proceedings to punish for contempt; but, upon such a proceeding, either to pay money for maintenance or education of the children, or for the support of the wife, or for costs directed to be paid by a judgment, section 1773 requires that it must appear presumptively to the satisfaction of the court that payment cannot be enforced by means of resorting to any security given, or by sequestration proceedings, or by issuing an execution. Ho affidavit having

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been furnished upon this application from which it is made to appear that payment cannot be enforced by the means enumerated, the motion, for that reason, must be denied; but without costs, and with leave to renew on proper papers.