Hyperlawhypertext legal database Mahon v. Mahon 50 N.Y. Super. Ct. 92

← Cases

Mahon v. Mahon

50 N.Y. Super. Ct. 92 18 Jones & S. 92 Court N.Y. Super. Ct. Decision date 1884-02-04 English

Contents

Majority

p. 92
RACHEL MAHON, Respondent, v. TERENCE P. MAHON, Appellant.
Decided February 4, 1884.

Headnote

Contempt.—Order fw precept when should adjudicate pa/rty guilty of'.—Nonpayment referee’s fees, etc.—Service of papers on attorney.
An order directing the defendant in an action for limited divorce to pay alimony and counsel fee, pendente lite, was granted on defendant’s default, and thereafter on his motion, and upon his stipulating to pay fees and disbursements, the matter was reopened and sent to a referee to take proof of defendant’s ability to pay such alimony, etc. A report being made in plaintiff’s favor, defendant was ordered to pay said fees of the referee and stenographer, and upon his failure to comply, an order was entered for the issuance of a precept, directing his detention, etc., until the same were paid:—Held, on appeal from said last named order, that defendant having appeared in the action by attorney, the order to show cause upon which the order for a precept was based, was properly served on said attorney; and that defendant being liable for said fees as the condition of a favor granted him, should pay them, upon notification of the amount, and an order directing him so to do may be entered without formal demand. But further held, that the order for said precept cannot be sustained, for the reason that it fails to adjudicate in terms that accused has committed the offense charged, and that it was calculated to or did defeat, impair, etc., the rights or remedies of plaintiff. It seems, that said fees are not to be deemed costs within Code Civ. Pro., § 15, forbidding arrest for non-payment of costs in certain cases.
Before Sedo-wick, Ch. J., Truax and O’Gorman, JJ.
Appeal from an order of special term directing defendant to pay the sum of $160, and from an order directing that a precept issue to the sheriff of the city and county of New York, commanding him to take the body of defendant.
Action to obtain a limited divorce. Respondent procured . an order by default, granting her $12 a week alimony, pendente lite, and $100 counsel fee. Subsequently, and on December 11, 1882, as a favor to appellant, default was opened, and the matter referred to a referee, to take proof of appellant’s financial ability to pay alimony and counsel fee; the appellant to stipulate to pay the costs
p. 93
and expenses of the reference, which the stipulation appellant gave.
Subsequently, on April 12, 1883, on continuing the reference before another referee, expenses of the reference were ordered to be paid by the appellant.
The referee reported in respondent’s favor. The referee’s fees amounted to $80, and the stenographer’s fees to same amount. A motion was thereupon made to compel the appellant to pay said fees, which motion was granted, and appellant having failed to comply with said order, a motion was made to punish him as for a contempt.
Thereafter, and on August 16, 1883, it was ordered that a precept issue, directing that the defendant be detained in the common jail until the payment of said fees. The order to show cause upon which this order was granted was not served on defendant personally, but on his attorneys, and the order (August 16, 1883), while it recited specifically the grounds of the motion, viz.: defendant’s non-payment of said fees, did not in terms adjñdicate that he had been guilty thereof.
Defendant appealed from the said order directing payment of said fees, and from the said order for a precept.
Culver & Wright, for appellant.
It is necessary to serve a party with all papers to bring him into contempt. The papers to bring defendant in contempt were not served on him, but on his attorneys (Code, § 802; Ward v. Arenson, 10 Bosw. 589 ; Fischer v. Raab, 56 How. Pr. 218 ; aff’d 58 Id. 221 ).
The person who made the demand, managing clerk of plaintiff’s attorney, does not show authority to receive the same, or that he was authorized to make a demand. It should be so shown.
' The order of August 16, 1883, is void, as it does not adjudicate the defendant guilty of any act which the law recognizes as a contempt of court. It should so appear in the order (see 3 R. S. § 20, tit. 13, ch. 8; Clark v. Bin
p. 94
inger, 75 N. Y. 344 ; Perkins v. Taylor, 19 Abb. Pr. 147 ; Fischer v. Raab, 81 N. Y. 237 , 238).
The referee’s fees in this action are in the nature of interlocutory costs, and cannot be enforced by arrest (Code, § 15, Laws 1847, ch. 390; Lansing v. Lansing, 4 Lans. 395 ; Ford v. Ford, 10 Abb. Pr. N. S. 74; Perkins v. Taylor, 19 Abb. Pr. 146 ; Leland v. Smith, 3 Daly, 320 ; McKelsey v. Lewis, 3 Abb. N. C. 61 ; Fischer v. Raab, 81 N. Y. 237 ; Geib v. Topping, 83 N. Y. 46 ).
The order is also void on the ground that it calls for an absolute commitment under proceedings in pursuance of section 5 of the statute, while at most a precept under section 4 of the statute could issue (People v. Bennett, 4 Paige, 282 ; Patrick v. Warner, ld. 397; Watson v. Nelson, 69 N. Y. 537 ; People v. Cowles, 3 Abb. Ct. App. Dec. 507 ; In re Kelly, 62 N. Y. 198 ).
Brewster Kissam, for respondent.
—The appellant was properly punished for his contempt in failing to obey the order directing him to pay said fees (Code Civ. Proc. § 14; Fischer v. Langbein, N. Y. Daly Reg. August 14, 1883).
Code, § 15, has no application to the case at bar. The referee’s and stenographer’s fees in question, are not costs within the intent of the statute. They are in the nature of special expenses, which were occasioned by reason of the granting of a favor to appellant, upon his special compact with the court to pay same.
It was not necessary that the appellant should have been personally served with the motion papers. Pitt v. Davison, 37 N. Y. 235 ; S. C., 3 Abb. N. S. 398 ; 34 How. 355 . Code Civ. Proc., § 802 has no application. It is a substitute for section 418 of the old Code, which was in force at the time of the decision of Pitt v. Davison, supra.

Sections 2281 and 2283 provide that if upon the return of an order to show cause it is determined that the accused has committed the offense charged, and that the offense was calculated to, or actually

p. 95
did defeat, impair or prejudice the rights or remedies of a party to an action . . . the court must make a final order accordingly, directing that the accused by punished by fine, or imprisonment, or both, and that a warrant of commitment must issue accordingly. There is no determination or adjudication in this order directing that a precept issue, that the accused has committed the offense charged, and that that offense was calculated to or did actually defeat, impair or prejudice the rights or remedies of the plaintiff. This order should therefore be reversed. Where a party has appeared in an action by attorney it is not necessary to serve him with the order to show cause why he should not be punished as for a contempt; such an order is correctly served if served on the party’s attorney (Pitt v. Davison, 37 N. Y. 235 ).

The defendant contends that the order directing him to pay the sum of one hundred and sixty dollars, referee and stenographer’s fees, should be reversed on the ground that the person who made the demand does not show authority to receive the same or that he was authorized to make such demand. Under the circumstances of this case, the defendant having obtained a favor upon stipulating that he would “ pay all charges and expenses incurred for referee’s fees,” the demand made, viz., that defendant pay such charges and expenses, and notifying him of the amount thereof, was sufficient. Under the stipulation it became the defendant’s duty to pay such charges and expenses.

This order is affirmed.

We cannot give the respondent the relief she asks for, viz., that both of the orders appealed from and the order of December 11,1882, and April 12, 1883, be vacated and set aside. The order of August 16,1883, is reversed, without prejudice to the plaintiff’s right to renew the motion to commit the defendant, and also without prejudice to his right to move to vacate those orders on the ground that the defendant has not complied with his stipulation.

No costs on this appeal.

O’Gorman, J., concurred.

Cases cited