Tucci v. Tucci

230 A.D. 737

Opinion

Order reversed upon the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. In order to maintain this proceeding in contempt, it was essential that a certified copy of the decree requiring the payment of alimony should be served upon the defendant, and as this was not done the defendant could not be held guilty of contempt. (Ryckman v. Ryckman, 32 Hun, 193; Matzke v. Matzke, 185 App. Div. 533; Dikeman v. Dikeman, 108 Misc. 406.) Young, Scudder and Tompkins, JJ., concur; Kapper, J., dissents upon the ground that as a demand is no longer necessary for the purpose of instituting contempt proceedings in a case of this character, the service of a certified copy of the judgment, which the statute does not require, is not essential; Lazansky, P. J., agrees with the view expressed by Kapper, J., but concurs in the result reached by the majority of the court, upon the ground that the affidavits submitted by plaintiff do not warrant the conclusion that payment of the alimony cannot be enforced by sequestration proceedings or by the giving of security therefor.