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[in weekly instalments of dollars, commencing] within [ten] days after the service of a copy of this order on [defendant's] attorney.* 2. That the [defendant] pay to the [plaintiff] the sum of
dollars per [week] for her support [and the education and support of the children of the marriage] during the pendency of this action, to be computed from the day of , 19 ; the entire amount of back alimony is to be paid by said [defendant] on or before , at the office of the plaintiff's attorney, and said sum of dollars each and every week thereafter on each Monday at the office of plaintiff's attorney, so long as this action shall be pending 33
[Special clauses, see following Forms. Costs, see Volume I, Form 101.]
Enter: (signature of judge by initials of name and title.]
SPECIAL CLAUSES SUCH AS ARE SOMETIMES INSERTED IN ORDER
TO PAY ALIMONY AND COSTS.
FORM No. 1000.
If the allowance dates back.34 [Insert in the last Form:) and that in days after service of a certified copy of this order on [defendant's] attorney [de fendant] pay the sum of dollars back alimony, which sum when paid shall be in full for all alimony to which plaintiff shall be entitled up to the day of
FORM No. 1001.
Stay of proceedings.35 That all proceedings on the part of the plaintiff herein, except to pay the sums above required, be and hereby are stayed until after payment of the counsel fee and the (weekly] allowance of temporary alimony up to and including the day of
the suit, generally. Schloemer 0. Schloemer, 49 N. Y. 82.
33 Although received by the attor ney, he has no right to appropriate any part to the repayment of disbursements made by him in the action. Matter of Bolles, 78 App. Div. 180, 79 N. Y. Supp. 530.
34 Held not usually proper in Thrall r. Thrall, 83 Hun, 188, 31 N. Y. Supp. 591. It is, however, usually allowed to plaintiff from commencement of the action.
35 A stay has been thus ordered in
several considered cases, unreported, but in one of them (Beadleston u. Beadleston, 23 Wkly. Dig. 365), on dismissing an appeal on other grounds, the General Term said the correctness of that part of the order staying plaintiff's proceedings might be doubted, “because it was in its nature a punishment for disobedience.”
On general principles, however, a stay of proceedings is not regarded as a punishment, but as a proper mode of enforcing compliance with any reasonable order of the court, even though it be such that the court has not power to enforce by punish ing for contempt, and therefore can enforce it, if at all, only by stay of proceedings meanwhile. The prac tice seems proper in cases where the oppressive course of the plaintiff requires it.
, herein required to be paid. And it is further ordered, that in the event of default in the payment of any instalment of said temporary alimony that may hereafter become due, all proceedings of the plaintiff (except paying the same herein required), be and hereby are further stayed for and during such default.
FORM No. 1002.
Condition.36 This order is made on condition that [defendant] upon or before service thereof file and serve a stipulation to (refer the action37 and] proceed to trial on day's notice. [Direction for security, if required, as in Form of judgment.]
FORM No. 1003. Affidavit to obtain order for sequestration and receiver.88 [Title, and commencement as in other cases.]
I. [State condition of cause, and the making and entry of the order to pay, referring to copy annexed.]
II. Allege service; see p. 982 of Volume I, Form 661.]
19 , deponent at No. street, in presented to said [husband) a written power duly signed and acknowledged by [wife] authorizing deponent to receive the payment of dollars required by said order,39 and then due, of which power a true copy is hereto annexed, and then and there demanded payment of said sum; but said [husband] refused to comply therewith and no part thereof has been paid. *
36 A reasonable condition may be imposed. Jacobson 0, same, 14 Daly, 255, 12 Civ. Pro. 198.
37 Such a condition was considered improper in Patterson v. same, 4 App. Div. 146, 38 N. Y. Supp. 637; Lowenthal v. same, 68 Hun, 366, 22 N. Y. Supp. 858.
38 N. Y. Code Civ. Pro., 88 1772, 1773.
By an amendment of $ 1772 in 1904, this remedy may now be obtained in an action upon a foreign decree of divorce for adultery, which awards alimony; superseding Wood v. Wood, 7 Misc. 579, 31 Abb. N. C. 235, 28 N. Y. Supp. 154, and Lynde r. Lynde, 162 N. Y. 405.
39 It is necessary to show that the demand was made, and by a person authorized to receive payment. An attorney has no authority after judg. ment to demand payment of alimony awarded therein, without showing written authority from the wife. Kalmanowitz 1. same, 108 App. Div. 296, 95 N. Y. Supp. 627; Conklin v. Conklin, 113 App. Div, 743.
[IV. That the security given by said — husband — cannot be enforced — or, has proved inadequate — by reason of, etc.40] [Date.]
[Signature.] FORM No. 1004.
Order for sequestration and receiver.41 [Caption (court order) and recitals according to the case.]
ORDERED, that R. C., Esq. [counselor-at-law], of , be and hereby is appointed a receiver of the personal property of the said [husband] Y. Z., and the rents and profits of his real property, and is hereby directed to take possession of said property, real and personal, and hold the same until the further order of this court (or, until the said — husband — shall give sufficient security to this court in regard to the payment aforesaid — or, and to apply said personal property and the rents and profits of said real property to the payments aforesaid], and said [husband] is hereby directed to deliver possession of said real and personal property to said receiver accordingly.
[Provision for security by receive 42 and authentication, as in Form 679 of Volume I, p. 1029, paragraph 2, etc.]
FORM No. 1005. Affidavit to obtain order to show cause why husband should not be attached
for contempt on not paying alimony.43 [As in Form 1003, adding at the end:] V. That said [husband] has no property within the State of New York which can be sequestered by the order of this court [if on information, show source, as :] as appears from the affidavit of the defendant, made upon the motion for alimony, and in which the following state ment was made by him (quote.]
40 An order for sequestration may be made even though no direction for security has been given, and defendant has not refused to give security. Perceval r. Perceval, 14 N. Y. St. Rep. 255; aff'd, 124 N. Y. 637. Under the Revised Statutes the court could not sequester defendant's property, until an order had been made to give security and disobeyed. Davis v. Davis, I Hun, 444.
41 Adapted from Foster . Town shend, 2 Abb. N. C. 29, 68 N. Y. 203; sep Donnelly v. West, 17 Hun, 564.
The court cannot compel a transfer of property from husband to wife, or eftert such a transfer by decree. Allen r. Farmers' L. & T. Co., 18 App. Div. 27, 45 N. Y. Supp. 398. Nor set aside
specific property. Doe v. Doe, 52 Hun, 404, 5 N. Y. Supp. 514. As to receive er's powers and title, see Bucki v. Bucki, 26 Misc. 69, 56 N. Y. Supp. 439.
42 Matter of Spies, 92 App. Div. 175, 86 N. Y. Supp. 1043.
43 Counsel fee allowed by order may be enforced by contempt proceedings. Mercer v. Mercer, 73 Hun, 192, 25 N. Y. Supp. 867. But judgment costs cannot be made the basis of contempt proceedings. Jaquin v. Jacquin, 36 Hun, 378.
It is necessary to show that the amount cannot be realized by seques. tration of the husband's property. Brisbane v. Brisbane, 34 Hun, 339, 5 Civ. Pro. 352. The moving papers must show whether the husband has any real or personal property. Sand ford v. Sandford, 44 Hun, 563.
That deponent verily believes that any direction of this court requiring defendant to give security for the payment of plaintiff's temporary alimony would be ineffective for the reason that said defendant is now absent from the State of New York and intends to remain absent, as deponent has been informed by defendant's attorney.
VI. [State as to previous application, etc., as in Form 817 of this volume.] [Jurat.]
[Signature.] [Annex affidavit showing service on the husband personally of a certified copy of the order awarding alimony,44 and of a demand for payment by some person authorized to receive it on behalf of the wife.45]
FORM No. 1006.
Order to show cause thereon.46 [Caption (court order) 47 and recitals according to circumstances; see supra, Form 820 of this volume, adding:] And said [husband] having made default in the payment of the sum of
dollars alimony (and counsel fee] under the order of this court dated the day of , 19 , and it appearing presumptively to the satisfaction of the court that payment of the sums directed by said order cannot be enforced by sequestration or by directing the giving of security therefor [or, and the court being satisfied that sequestration or direction to give security would not be effectual] : 48
ORDERED, that said [husband] show cause at a Special Term [Part I) of this court, to be held at the County Court House
See general note in 24 L. R. A. 433, on proceedings by contempt to enforce payment of alimony.
44 Ryckman v. Ryckman, 32 Hun, 193.
45 Kalmanowitz. l', same. 108 inn. Div. 296, 95 N. Y. Supp. 627; Ryckman v. Ryckman, supra; Delanov 1. Delanoy, 19 App. Div. 295, 46 N. Y. Supp. 106.
46 N. Y. Code Civ. Pro., & 1773. A notice of motion is ineffectual. Sandford v. Sandford, 40 Hun, 540, 2 N. Y. St. Rep. 133, 9 Civ. Pro. 289.
Service of the order on the husband's attorney is not sufficient. Goldie r. Goldie, 77 App. Div. 12, 79 N. Y. Supp. 268, overruling Winton ". Livey, 16 N. Y. Civ. Pro. 348; Zimmerman 1. same, 26 Abb. N. C. 366, 14 N. Y. Supp. 444. In Keller 0. Keller, 100 App. Div. 325, 91 N. Y. Supp. 528, it was held that service of the order on the attorney after judg. ment was ineffective.
47 Code Civ. Pro., & 1773.
48 These recitals are usual, but are probably not essential. See Distasio v. same, 26 Misc. 491, 57 N. Y. Supp. 672; Ryer v. Ryer, 33 Hun, 117.
[or, City Hall] in , on the day of
, 19 , at o'clock in the noon, or as soon thereafter as counsel can be heard, why he should not be punished for his failure to make the payments directed by said order of , 19 [and counsel fee) and for such other and further relief as may be just. Service hereof on or before the
· peiore the
day of , 19 , shall be sufficient.
Enter: [signature of judge by initials of name and title.]
FORM No. 1007. Order adjudging husband in contempt for failure to pay alimony.49 [After appropriate recitals of the moving papers]50 and upon due proof of the service of the said order to show cause upon the defendant personally within the State and upon defendant's attorney; and after hearing A. T., attorney for plaintiff, for the motion, and Y. Z., attorney for defendant, opposed, it is, on motion of A. T., attorney for plaintiff:
ORDERED, adjudged and decreed, that the defendant is guilty of contempt of court for his failure to comply with the order of this court heretofore granted herein and entered , 19, which required defendant to pay to the plaintiff, or her attorney, alimony at the rate of dollars weekly during the pendency of this action, and under which the sum of dollars has heretofore become payable, and is unpaid.
That said failure and contempt of said defendant was calculated to and actually did defeat, impair and prejudice the rights and remedies of plaintiff herein, to plaintiff's actual loss in said sum of
dollars.51 That said defendant be committed by the sheriff of any county in the State of New York to jail, to be there detained in close
in the Stara defendant dollars. 61
19 Discharge in bankruptcy is no defense to the application. Maisner r. Maisner, 62 App. Div. 286, 70 N. Y. Supp. 1107. Nor is the husband's poverty. Delanoy v. Delanoy, 19 App. Div. 295, 46 N. Y. Supp. 106.
The husband's answer cannot be stricken out as punishment for the contempt. Hovey v. Elliott, 167 U. S. 409, overruling Walker r. Walker, 82 N. Y. 262; Sibley v. Sibley, 76 App. Div. 132, 78 N. Y. Supp. 743; Harney r. Harney, 110 App. Div. 20.
60 The order is not irregular for failing to recite that plaintiff has no
property, or that sequestration proceedings would be ineffectual. Distasio 0. Distasio, 26 Misc, 491, 57 N. Y. Supp. 672. The papers submitted upon the application to punish must, however, establish such facts. Sandford v. Sandford, 44 Hun, 563, 9 N. Y. St. Rep. 46.
51 It was held in Matter of Sims, 57 Hun, 433, 11 N. Y. Supp. 211, that it is not necessary that the court should adjudge that the husband's neglect had impaired the wife's right. Contra, Sandford v Sandford, 40 Hun, 540, 9 Civ. Pro. 289.