Branth v. Branth — 36 N.Y. St. Rep. 628

Majority

p. 628

Theresa Branth, Resp’t, v. John H. Branth, App’lt.

(Supreme Court, General Term, First Department,

Filed February 11, 1891.)

Headnote

Contempt—Divorce—Costs.

Costs and counsel fees awarded by a judgment in an action for divorce cannot be enforced by proceedings as for contempt.

(Jacquin v. Jacquin, 36 Hun, 378 , followed and approved; Park v. Park, 80 Ñ. Y., 156 , distinguished.)

p. 629

Appeal from order adjudging the defendant to be in contempt for non-payment of costs and counsel fees contained in a decree of divorce.

W J. Lynch, for app’lt; George F. Langbein, for resp’t

We are of opinion that the case of Jacquin v. Jacquin, 36 Hun, 378 , was correctly decided.

It is true that it appears to be in conflict with the case of Park v. Park, 80 N. Y., 156 , wherein it is said that the claim that the attachment should be vacated because it was based upon the refusal of the defendant to pay the costs of the suit is sufficiently answered by the fact that it was issued for disobedience of the order of the court.

Ho such question was involved in the case of Park v. Park, as we ascertained by examining the record as it was presented to the court of appeals. The only costs, for the recovery of which the attachment was issued, were the costs and expenses of the proceedings for the attachment. And it is clear for the reasons stated in Jacquin v. Jacquin that the power to commit for nonpayment does not extend to the costs and allowances contained in the final judgment. In fact, it is evident that the court does not direct the payment of such costs in a judgment of that description, but simply allows a recovery of the same and permits judgment to be entered therefor; in this respect differing very materially from the provisions of a judgment for the payment of alimony, in respect to which no judgment can be entered, and which can only be collected by the proceedings authorized by the Code.

We think, therefore, that the order should be reversed, but, in view of the fact of its having been made relying upon the previous opinion of the general term, it should be without costs.

Brady and Daniels, JJ., concur.