Conklin v. Conklin

Appellate Division of the Supreme Court of New York

Conklin v. Conklin

113 A.D. 743, 99 N.Y.S. 310, 1906 N.Y. App. Div. LEXIS 1529

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 8, 1906

StatusPublished

Cited by1 cases

This text of 113 A.D. 743 (Conklin v. Conklin) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Conklin v. Conklin, 113 A.D. 743, 99 N.Y.S. 310, 1906 N.Y. App. Div. LEXIS 1529 (N.Y. Ct. App. 1906).

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Opinion

Rich, J.:

The final decree directed that the defendant “ pay to the plaintiff, Jeannie L. Conklin, as and for her support and maintenance the sum of Twenty-five ($25) Dollars per week.” It appears that at the tizne this pz-oceeding was izzstituted defendant was in arrears in the sum of $600. The moving papers show that a certified copy of the decree was personally served upon defendant October 28, 1904, and that on the 27th day of November, 1905, a managing clerk in the office of plaintiff’s attorney in the action demanded of defendant the alimony due to plaintiff under the decree. While a demand might properly have been made by a person authorized by plaintiff, to receive the amount, yet the moving papers do not disclose that defendant was informed that the person- making the demand was authorized to do so, or that he had any authority to receive the money for plaintiff. So far as appears hy the record, the demand [744]*744may have beemmade by a person unknown to'defendant, a. stranger .to flip proceeding.

. It must be made to appear to the satisfaction of the Court, by -some evidence, that the party- in default has refused or neglected to p,a.y jhe .alimony after, demand, and some evidence of the authority of the 'person making the demand to receive the same before' an orderwill be made-adjudging a party in contempt. .The power- of t]ió:attorney for plaintiff ceased after the entry of judgment (Kalmanowitz v. Kalmanowitz, 108 App. Div. 297), and evidence that bis managing- clerk was authorized to make tlie demand without showing who gave the authority or that notice of the fact was given defendant is not sufficient 'to justify the order.

We think plaintiff lias failed to establish facts sufficient to justify defendant’s commitment, for contempt, that tlie order must be reversed and motion denied.

Woodward, Jenks, and Gaynor, JJ., concurred.

■'Order reversed, with ten dollars costs- and disbursements, and motion denied, with, costs.. -■ , ..

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Rich, J.:

The final decree directed that the defendant “ pay to the plaintiff, Jeannie L. Conklin, as and for her support and maintenance the sum of Twenty-five ($25) Dollars per week.” It appears that at the tizne this pz-oceeding was izzstituted defendant was in arrears in the sum of $600. The moving papers show that a certified copy of the decree was personally served upon defendant October 28, 1904, and that on the 27th day of November, 1905, a managing clerk in the office of plaintiff’s attorney in the action demanded of defendant the alimony due to plaintiff under the decree. While a demand might properly have been made by a person authorized by plaintiff, to receive the amount, yet the moving papers do not disclose that defendant was informed that the person- making the demand was authorized to do so, or that he had any authority to receive the money for plaintiff. So far as appears hy the record, the demand [744]*744may have beemmade by a person unknown to'defendant, a. stranger .to flip proceeding.

. It must be made to appear to the satisfaction of the Court, by -some evidence, that the party- in default has refused or neglected to p,a.y jhe .alimony after, demand, and some evidence of the authority of the 'person making the demand to receive the same before' an orderwill be made-adjudging a party in contempt. .The power- of t]ió:attorney for plaintiff ceased after the entry of judgment (Kalmanowitz v. Kalmanowitz, 108 App. Div. 297), and evidence that bis managing- clerk was authorized to make tlie demand without showing who gave the authority or that notice of the fact was given defendant is not sufficient 'to justify the order.

We think plaintiff lias failed to establish facts sufficient to justify defendant’s commitment, for contempt, that tlie order must be reversed and motion denied.

Woodward, Jenks, and Gaynor, JJ., concurred.

■'Order reversed, with ten dollars costs- and disbursements, and motion denied, with, costs.. -■ , ..

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113 A.D. 743, 99 N.Y.S. 310, 1906 N.Y. App. Div. LEXIS 1529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conklin-v-conklin-nyappdiv-1906.

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