Opinion
November 16, 1910.
John W. Roddy, for the appellant.
James R. Stevens, for the respondent.
In this action for a separation defendant had been ordered to pay the plaintiff, his wife, four dollars a week alimony. On his motion an order was subsequently made discontinuing the payment of such alimony. This last-mentioned order on appeal to this court was reversed and the motion denied. ( 137 App. Div. 936.) Thereupon, after service of proper papers and a demand of the defendant for the unpaid alimony, amounting to sixty-four dollars, which was refused, a motion was made by plaintiff to punish the defendant for contempt in not complying with the order requiring the payment of such alimony. This motion was denied and the plaintiff appeals. The motion should have been granted.
No opposing affidavits were presented in the court below. There is no question of fact. This court may make the determination which should have been made at Special Term.
The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, and a determination is hereby made that the defendant has committed the offense charged, and that it was calculated to and actually did defeat, impair, impede and prejudice the rights of the plaintiff, and that for such misconduct the defendant pay a fine of sixty-four dollars, and in addition thereto the said costs and disbursements, and that he be imprisoned until such fine is paid.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, and a determination is hereby made that the defendant has committed the offense charged, and that it was calculated to and actually did defeat, impair, impede and prejudice the rights of the plaintiff, and that for such misconduct the defendant pay a fine of sixty-four dollars, and in addition thereto the said costs and disbursements hereby allowed, and that he be imprisoned until such fine is paid.