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18 Jones & S. 92

Mahon v. Mahon

The Superior Court of New York City

Decided February 4, 1884

The Superior Court of New York City · decided 1884-02-04

Action to obtain a limited divorce. Respondent procured . an order by default, granting her $12 a week alimony, pendente lite, and $100 counsel fee. Subsequently, and on December 11, 1882, as a favor to appellant, default was opened, and the matter referred to a referee, to take proof of appellant’s financial ability to pay alimony and counsel fee; the appellant to stipulate to pay the costs and expenses of the reference, which the stipulation appellant gave.

Relies on Pitt v. . Davison

Decided 1884-02-04

By the Court.—Truax, J.

¶1Sections 2281 and 2283 provide that if upon the return of an order to show cause it is determined that the accused has committed the offense charged, and that the offense was calculated to, or actually *95did defeat, impair or prejudice the rights or remedies of a party to an action . . . the court must make a final order accordingly, directing that the accused by punished by fine, or imprisonment, or both, and that a warrant of commitment must issue accordingly. There is no determination or adjudication in this order directing that a precept issue, that the accused has committed the offense charged, and that that offense was calculated to or did actually defeat, impair or prejudice the rights or remedies of the plaintiff. This order should therefore be reversed. Where a party has appeared in an action by attorney it is not necessary to serve him with the order to show cause why he should not be punished as for a contempt; such an order is correctly served if served on the party’s attorney (Pitt v. Davison, 37 N. Y. 235).

¶2The defendant contends that the order directing him to pay the sum of one hundred and sixty dollars, referee and stenographer’s fees, should be reversed on the ground that the person who made the demand does not show authority to receive the same or that he was authorized to make such demand. Under the circumstances of this case, the defendant having obtained a favor upon stipulating that he would “ pay all charges and expenses incurred for referee’s fees,” the demand made, viz., that defendant pay such charges and expenses, and notifying him of the amount thereof, was sufficient. Under the stipulation it became the defendant’s duty to pay such charges and expenses.

¶3This order is affirmed.

¶4We cannot give the respondent the relief she asks for, viz., that both of the orders appealed from and the order of December 11,1882, and April 12, 1883, be vacated and set aside. The order of August 16,1883, is reversed, without prejudice to the plaintiff’s right to renew the motion to commit the defendant, and also without prejudice to his right to move to vacate those orders on the ground that the defendant has not complied with his stipulation.

¶5No costs on this appeal.

¶6O’Gorman, J., concurred.

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