Mahon v. Mahon

Sections 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).

The 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.

This order is affirmed.

We 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.

No costs on this appeal.

O’Gorman, J., concurred.