SMITH a. SMITH

SMITH a. SMITH. Supreme Court, First District; At Chambers, April, 1862. Practice in Cases of Contempt.—Sufficiency of Service of Order of Court. Or an application to punish for contempt, where interrogatories have heen administered to the party accused, the moving party may read affidavits to contradict his answers. In order to bring a person into contempt for disobedience of an order of the court which has been entered with the clerk, delivery of a copy of the order, showing at the same time a copy certified by the clerk, is a sufficient service. Motion to commit for contempt. This was an action by Jane Smith against William Smith, for a divorce. On the 9th of December, 1861, on the application of the plaintiff, an order was made, directing the defendant to pay a counsel-fee of $250 within ten days. On the 1st of February, 1862, an attachment was issued against the defendant for contempt; and on the return-day of the attachment, an order was made directing the plaintiff to file interrogatories, and that the defendant answer them under oath. On the interrogatories and answers so filed, and on several affidavits, the plaintiff moved for a final commitment, for contempt, until the $250 and costs were paid. Ira D. Warren, for the motion. I. The court may receive any affidavits, or other proofs, contradictory of the answers of the defendant, or in confirmation thereof. (3 Rev. Stat., 5 ed., 852, § 19.) Where the case has been sent to a referee, or, under the old practice, to a master, to take the defendant’s answers, and such other proof as either party might produce, the court would not allow exparte affidavits to be received, unless the master was specially directed by the order of reference to receive such affidavits as proof. (Cumming a. Waggoner, 7 Paige, . 603; Crary's N. Y. Practice, 404, 407.) The order directing interrogatories to be filed in this case, directed the application for a commitment to be heard on the interrogatories and answers, “ and such further proof as either party may produce.” The affidavits produced impeach the defendant. They show that he had $169 in bank when the order was made, and for some days after. His answers to the interrogatories convict him of contempt. H. The order directing the defendant to pay $250 was properly served; it was a special-term order. A certified copy was shown to the defendant, and a copy at the same time delivered to him. A power of attorney to receive the money was at the same time exhibited to him, and the money demanded. This was a sufficient service of the order so as to convict the defendant of contempt. (Hull a. Thomas, 3 Edw., 236; People a. Sturtevant, 9 N. Y., 278.) IH. The defendant should be fined $250,..and a reasonable counsel-fee, and stand committed till paid. (Albany City Bank a. Schermerhorn, 9 Paige, 373; People on rel. Lovett a. Rogers, 2 Ib., 103.) William P. Stafford, opposed. [MAJORITY — Barnard, J.] Barnard, J. Motion to commit defendant for contempt, in not paying the sum of $250, directed by the order of Dec. 9, 1861. The defendant has- been brought up on attachment. Interrogatories, and defendant’s answers- thereto, have been filed. There was an order of reference-to take defendant’s answers to the interrogatories, and such proof in support of, and in opposition to the answers, as each party should adduce. The answers to the interrogatories having been filed the plaintiff moves for a commitment, and proposes to read affidavits in opposition to such answers. Defendant opposes the motion, on the following grounds: I. That he was not shown the signature of a judge, or of the clerk, to any order requiring him to pay. 2. That there was no personal demand. 3. That the agent who made the demand exhibited no written authority. 4. That defendant’s neglect to pay arises solely from absolute poverty. 5. That no affidavit can be used in opposition to defendant’s answers to interrogatories. As to the point that affidavits contradicting answers to the interrogatories cannot be read, I think defendant is in error. Where there has been no reference to a master under the former system, or a reference under the present, to take the answers to the interrogatories, and such proofs in support of and contradictory to such answers as either party might adduce, the court, on the coming in of the answers to the interrogatories, is not only authorized, but bound to receive such affidavits as may be adduced either in support of, or in opposition to the answers. Although the court, in such case, is bound to receive affidavits, still, if the affidavits presented are such as to make ft apparent to the court that an oral examination of the affidavits is necessary, an order of reference to take such examination may be required. The present case requires no such reference. Considering, then, the affidavits read by the plaintiff in opposition to the answers to the interrogatories, as well as the answers themselves, I am clearly of opinion that a copy of the order requiring the payment of the sum of $250 was personally served on the defendant; a certified copy, having the signature of the clerk of this court thereon, being at the same time shown defendant; and demand of payment was made on defendant personally by a person duly authorized by written authority, who exhibited his written authority at the time; and that defendant’s neglect to make payment arises from a wilful disobedience of the order, and not from absolute poverty. The order in question being a special-term order, and entered with the clerk of this court, the service of a copy of it, a certified copy of the original order under the hand of the clerk being shown at the same time, is sufficient service, under the principle of Hull a. Thomas (3 Edw., 236; approved in People a. Sturtevant, 9 N. Y., 278), to bring the party into contempt. Motion granted.