Wulff v. Wulff

74 Misc. 213, 133 N.Y.S. 807

Opinion

Kappee, J.

Weich v. Weich, 59 Misc. Rep. 238, and Carr v. Carr, 64 id. 435, holding that service of the order to show cause upon the husband’s attorney, only, was sufficient to put him in contempt for nonpayment of alimony, so far as appears from the reports, were both.cases of proceedings before final judgment. ■ After -final judgment, however, I think that contempt- proceedings in a matrimonial action cannot be instituted without service of the order to show cause upon the husband personally. Keller v. Keller, 100 App. Div. 325.

In the case at bar, service of the order to show cause was directed to be made upon the attorney who appeared for the husband in the action. Said attorney appeared in response to the order to show cause and stated that he was without authority to appear on this motion. As was said in the Keller case, supra, 331: “ There is no presumption that the attorney who had appeared for the defendant in the action prior to the final judgment had authority to appear in subsequent proceedings.’’

The motion must be denied.

Motion denied.