This action is for an absolute divorce. By an order granted May 29, 1901, the plaintiff was allowed alimony at the sum of twenty-five dollars per week. A certified copy of this order was served upon the defendant personally September 14, 1901, and he complied with it for a time by paying the sum awarded, although somewhat delinquent in making the weekly payments. Upon his application the order was modified by an order of the Special Term granted December 6, 1901, reducing the allowance to twenty dollars per week.
It was contended by the defendant upon the application for the reduction of this award that the plaintiff had in her possession a large quantity of household goods and furniture belonging to him, and she was directed by the order to transfer this property to the defendant and no alimony was to be payable until she complied with this direction, which she did at once. Thereafter the defendant *18made payments along from time to time until the 6th day of May, 1902, when there remained unpaid $263. On that day an order was granted at a Special Term of the Supreme Court requiring the defendant to show cause why he should not be punished for contempt for failing to pay the alimony granted by the previous orders. A copy of this order was served on the attorneys for the defendant and they appeared in response to it, and among other papers read in opposition to the granting of the contempt order was the affidavit of the defendant himself. Among the objections urged on his behalf was that the plaintiff had in her possession certain property of the defendant, silverware, a rug and other articles of the value of $750. The order made at this hearing required the plaintiff to give a bond in the sum of $750, conditioned for the delivery to the defendant of the said property, and within ten days after the execution and delivery thereof the defendant was required to pay said sum of $263. The order further adjudged the defendant guilty of contempt in failing to comply with the orders before granted requiring the payment of alimony, and imposed upon him a fine of $263, and also directed that he “ be committed by the sheriff of any county in the State of New York to jail, to be there detained in close custody until he shall pay said sum or shall be discharged according'to law.” The plaintiff, in compliance with said order, executed the bond required, with the National Surety Company as surety thereon, and the same was approved by a justice of the Supreme Court and delivered to the attorneys for the defendant in compliance with the order and accepted by them. The defendant, however, failed to comply with that order by neglecting to pay the said sum of $263. After the expiration of the said ten days an order was granted by .the Special Term adjudging the defendant guilty of contempt. .This order was subsequently vacated on the ground that the defendant should have had notice of the application. An order was then granted requiring the defendant to show cause why he should not be adjudged in contempt of court for failing to obey said orders. The defendant appeared in response to said order to show cause by his attorneys, and the order appealed from was granted. It provides, among other things, after adjudging the said defendant •guilty of contempt, that he be committed to jail “ until he shall pay said sum or shall be discharged according to law.”
*19The contention of the appellant is that no personal demand has been made upon the defendant as required by section 226S of the Code of Civil Procedure. Assuming, but not conceding, that this proceeding was instituted pursuant to that section, we apprehend its strict observance is not essential in this case. To recapitulate the facts, the original order granting alimony was served upon the defendant personally. He complied with it until November 25, 1901. Upon his application a modification of this order was granted December 6, 1901, and property was directed by that order to be delivered over to him by the plaintiff, which was complied with. Then the order of May nineteenth was granted, and upon that hearing his own affidavit was read, and he again asked relief requiring the plaintiff to deliver over other property or secure it to him in case he should ultimately establish title to it. He accepted the fruits of that order in so far as it was beneficial to him. The whole sum of $263 was then unpaid, and apparently no question was raised as to that fact by the defendant in opposing the motion. The object of the personal demand is to give him notice of the real situation and an opportunity to pay. He has persistently set at defiance the orders of the court requiring payment from him, although eager to accept the benefits which accrued to him from them. The requirement as to a personal demand must be fairly construed, and while one who is in contempt for violating the orders of the court should not be put in jail or his liberty jeopardized without the fullest opportunity to be heard, still the requirement should not be extended to enable a defiant delinquent debtor with full knowledge of his contempt to escape the punishment his misconduct merits.
This proceeding was not, however, instituted pursuant to section 2268 of the Code of Civil Procedure. The basis of it is section 1773, which provides for the enforcement of payment by punishment for contempt when there has been a default of the husband in paying the sum allowed for the maintenance of his wife. That section prescribes that the proceedings to punish the husband shall be in accordance with title 3 of chapter 17 of the act. The proceeding was evidently commenced under section 2269, which provides for a warrant of attachment to the sheriff, and is based upon an affidavit showing the commission of the offense and upon an order to show cause. There is no specific requirement in that section that a personal demand is *20necessary unless the proceeding is instituted under the preceding section. Of course, irrespective of any Code provision, a man may not be incarcerated or deprived of his liberty without an opportunity to be heard, but in a case like the present, where it is apparent the delinquent has known of every order and has been persistent in evading or violating their provisions, he should not be permitted to succeed still further because the payment of the money has not been personally demanded of him.
The order should be affirmed, with ten dollars costs and the disbursements of this appeal.
Williams, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied.