Samuels v. Samuels

274 A.D. 909, 83 N.Y.S.2d 257, 1948 N.Y. App. Div. LEXIS 4002

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 29, 1948
• Status: Published

Opinion

Appeal by defendant from an order granting motion of plaintiff to adjudge him to be guilty of contempt in disobeying an order directing him to furnish security for the payment of alimony and to pay a counsel fee, and denying a cross motion of defendant for modification of the judgment of separation by reducing the amount of alimony therein fixed. Order affirmed, with $10 costs and disbursements. Irrespective of necessity therefor, the order directing defendant to furnish security and pay a counsel fee was made, at the instance of defendant, upon a hearing and determination of the issue of financial ability of defendant, and defendant has sustained no adverse change of circumstances thereafter. In the light of that circumstance, it was within the power of the court to refuse to relitigate the issue of financial ability on the hearing of this motion. As to the power of a court to punish for contempt a failure to provide required security, we are in agreement with the reasoning and determination in Rosen v. Rosen (226 App. Div. 327) that the court does possess such power, and accordingly overrule the holding insofar as it is to the contrary in Pelz v. Pelz (182 App. Div. 923). Nolan, P. J., Carswell, Johnston, Adel and Sneed, JJ., concur. [See post, p. 944.]