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Sandford v. Sandford

2 N.Y. St. Rep. 133 Court N.Y. Gen. Term Decision date 1886-06-01 English

Delivered by *134 Daniels, J.

Contents

Majority

p. 133
E. Crawford Sandford, appellant, Harriet A. Sandford, respondent.
(Supreme Court, General Term, First Department,
Filed June 1, 1886.)

Headnote

1. Contempt—Alimony—Husband can be committed for contempt ONLY AFTER SERVICE OF ORDER TO SHOW CAUSE OR WARRANT OF ATTACHMENT— Code of Civil Procedure, § 1773.
It is made necessary by the Code of Civil Procedure, § 1773, that at least an order to show cause should be first served upon the husband beforé an order adjudging him in contempt and directing his commitment for the non-payment of temporary alimony can be obtained.
2. Same—Code of Civil Pbocedure, § 2269.
By the Code cf Civil Procedure, § 2269, in order to punish the husband for contempt, an order to show cause shall be made and served or a war rant of attachment shall be issued to bring him before the court.
3. Same—OpDE of Civil Procedure, §§ 2266, 2281.
To punish a party for a_ contempt in a civil proceeding, his contempt must be such as to defeat, impair, impede, or prejudice a right or remedy of the party affected by it, and that fact must be ascertained and adjudged by the court directing the punishment which is to be imposed.
4. Same—Husband must be served with order directing payment of ALIMONY BEFORE HE IS LIABLE FOR CONTEMPT.
Until service of the order directing the payment of alimony is made upon the husband he is not liable to be brought into contempt for a failure to comply with its direction.
Appeal from an order adjudging the plaintiff in contempt and directing his commitment to prison.
William B. Tullis, for appellant, E. Crawford Sandford.
Roswell H. Carpenter, for respondent, Harriet A. Sandford.

The plaintiff has been adjudged in contempt and ordered to be committed for the non-payment of weekly allowances provided for the defendant by way of temporary alimony. The order directing the payments was authorized by section 1169 of the Code of Civil Procedure. And for the failure to pay the amount ordered, the plaintiff was hable to be adjudged in contempt and committed under the authority of section 1113 of the same Ood§. But to obtain an order adjudging him in contempt and directing his commitment, it has been made necessary by this section that at least an order to show cause should first be served upon him.

It has also been provided by the same section that the proceedings to punish the party must be taken as prescribed in title three of chapter seventeen of the Code. And section 2269 of that chapter and title also requires that an order to show cause shall be made and served or a warrant of attachment shall be issued to bring him before the court.

The application to punish the plaintiff was not brought on in compliance with these provisions, but it was made upon a mere n.otice of motion, which was not the course prescribed by these sections of the Code, and an objection to that mode of proceeding was taken upon the hearing of the motion.

It was stated in the affidavit of the plaintiff that the order directing the payment of the weelcly allowance by him had not been served upon him, and there is no evidence in the papers conflicting with this statement." Until such service of the order was made, the plaintiff was not liable to be brought into contempt for a failure to comply with its direction. Coddington v. Webb, 4 Bandf. Ct. Rep., 639; Watson v. Fuller, 9 How., 424 ; Macauley v. Palmer, decided by this general term in March, 1886, and not yet reported.

To punish a party for a contempt in a civil proceeding, his contempt must be such as to defeat, impair, impede or prejudice a right or remedy of the party affected by it, and that fact must be ascertained and adjudged by the court directing the punishment which is to be imposed. Code Civil Pro., §§ 2266, 2281; Swenarton v. Shupe, also decided by this general term, in March, 1886, and not yet reported.

The order from which the appeal has been taken contains no such adjudication, and because of that omission it fails to comply with what has been directed by these actions of the statute. In each of these respects the proceeding was wholly defective, and the order from which the appeal has been taken cannot be sustained. It should be reversed with the usual costs and disbursements to abide the event of the action, and without prejudice to a further proceed-.

p. 135
ing against the plaintiff in the form in which the law has prescribed it may be taken.

Brady, J., concurs.