We have here a defendant who is in flagrant contempt of the Supreme Court, and under its well-settled rule is entitled to no hearing or relief until he places himself in a proper attitude to ask it.
The order appealed from is not reviewable upon the facts in this court, for the technical reason that it does not state the reversal of the order of the Special Term was upon the facts as well as the law.
While it is true that we will not look into the opinion of the court below to ascertain whether the reversal was on the facts, nevertheless it is the practice of this court, in exceptional cases, to hold the appeal and permit the appellant to apply to the court granting the order to amend it, so as to show that the reversal was on the facts as well as the law, if such be the case.
I think the present appeal presents a very clear exception to our general rule, and that this order should be amended, as the opinion of the Appellate Division shows that the reversal was upon the facts, and for the additional reason that the requirement of the court respecting proof to be made before the referee of the changed condition of the defendant's circumstances was not complied with in any sense, "either technically or in spirit," as stated in opinion below.
The question as to what extent the income of a trust, created for the husband's benefit, can be devoted to the payment of alimony due from him to his divorced wife, after her second marriage, was not considered by the Special Term or the Appellate Division, and has not been argued at our bar. *Page 513
A question of such importance, so far-reaching in its results, ought not to be determined without full argument and careful consideration. I am also of opinion that we should aid the Supreme Court in enforcing obedience to its mandates and vindicating its authority.
PARKER, Ch. J., HAIGHT, VANN and LANDON, JJ., concur with O'BRIEN, J., for reversal; BARTLETT, J., reads dissenting memorandum, and MARTIN, J., concurs.
Order reversed, etc.