Ross v. Ross

Appeal from an order adjudging appellant in contempt for failure to pay alimony and counsel fee as provided in an order-modifying a judgment of separation. Order reversed, without costs, and proceeding remitted to the Special Term for the making of a new and proper order. The order appealed from is defective in that it contains no recital that appellant’s disobedience was calculated to, or actually did, defeat, impair, impede or prejudice the rights of the respondent (Novie v. Novie, 231 App. Div. 860; Matter of Marinsky v. Ranald, 259 App. Div. 849; Schweig v. Schweig, 122 App. Div. 787; Feinberg v. Kutcosky, 147 App. Div. 393) and in that it fails to specify the total amount of the fine which appellant is to pay to purge himself of contempt (Burnham v. Denike, 53 App. Div. 407; Hommel v. Buttling, 46 App. Div. 206). Whether appellant’s disobedience was calculated to, or actually did, defeat, impair, impede or prejudice respondent’s rights, and if so, what punishment should be imposed, should be determined by the Special Term, to which the application to punish for contempt was made. Nolan, P. J., Beldoek, Murphy, Ughetta and Hallinan, JJ., concur.