The order appealed from adjudged the defendant, appellant, in contempt of court for failure to pay alimony at the rate of sixty dollars per week as directed in the final judgment of absolute divorce, dated. April 29, 1927, entered in the Supreme Court, New York county, and imposed a fine for arrears amounting to the sum of $425, but permitted the appellant to purge himself of that contempt by paying the amount of the fine in installments with the alimony as it becomes due. The order appealed from also directed that in the event of default of such payments the defendant was to be committed on an ex parte application.
The judgment of absolute divorce which was interlocutory in nature, incorporated, by consent of the parties, an agreement made between them pending the trial of the action by which the appellant was to pay sixty dollars per week for respondent’s support and that of two children, issue of their marriage, during their minority. The order appealed from provided as follows:
“ Further Ordered, that the defendant be and he hereby is guilty of a contempt of this Court for having wilfully disobeyed the judgment entered herein on August 29, 1927, in that the defendant has neglected and refused to pay the sum of Four hundred and twenty-five ($425.00) Dollars to the plaintiff as alimony for the period from February 20, 1932, to April 13, 1932, and that said misconduct of said defendant was calculated to and actually did defeat, impair, impede, prejudice and delay the rights and remedies of the plaintiff to her actual loss and injury in the sum of Four hundred and twenty-five ($425.00) Dollars; and it is
“ Further Ordered, that the defendant for his said misconduct be and he hereby is fined the sum of Four hundred and twenty-five ($425.00) Dollars, to be paid to the plaintiff; and it is
“ Further Ordered, that the defendant may purge himself of the contempt by paying said fine of Four hundred and twenty-five ($425.00) Dollars at the rate of Ten ($10.00) Dollars per week, in addition to the payments of current alimony as they'become due, the first payment to be made by the defendant on May 23rd, 1932; and to continue weekly thereafter until the arrears are liquidated; it is further
“ Ordered, that in the event of the failure of said defendant to make the payments as hereinabove directed, upon proof by affidavit of such failure an order may be obtained ex parte, committing him to jail until such time as he shall pay the amount of said fine or *260any portion thereof remaining unpaid, or be discharged according to law.”
It is undisputed that between February 20, 1932, and the making of the motion, appellant had failed to pay respondent the sum of sixty dollars per week, the respondent asserting that since that date she received the sum of but fifty-five dollars, whereas the appellant contends that he paid her ninety-five dollars. It was shown that from February 21, 1927, the date of the agreement which was subsequently embodied in the judgment of divorce, down to February 20, 1932, the appellant, with the exception of the lapsed payments which are the basis for this motion, has faithfully complied with the judgment of the Supreme Court, first in the separation action and then in the superseding divorce action and paid respondent for a period of about 260 weeks at the rate of sixty dollars per week, or a total of approximately $15,000. None of these payments is disputed. It is further admitted that when the parties lived together the appellant gave respondent a house valued at $14,000 which at that time had an equity of $9,500, and which plaintiff subsequently sold, taking back a purchase-money mortgage of $4,500 as part consideration.
The judgment did not provide for the payment of sixty dollars per week for the remainder of the plaintiff’s life. It provided for the payment of sixty dollars per week during the minority of the children. One child, a son, was twenty-one years old on March 27,1931, and is a student at a medical college in Hamburg, Germany. The other child, a daughter, is nineteen years of age, and is a student at a business school. When the defendant established the fact that one of the children had reached his majority and on showing that his income was not greater than it had been when the judgment was entered, he was entitled to a modification of the judgment.
The appellant contends that he has most generously contributed toward the support of his wife and two children; that he is now suffering from heart trouble, and is not able to provide for them as he has during the last few years. He has shown his good faith by promptly paying alimony for several years.
There appears to be a large degree of discretion lodged in the court in the" matter of punishing a debtor for contempt. It is a remedy which should be used only in a clear case and its application depends upon the facts in each particular case. (Brill v. Brill, 148 App. Div. 63; Fischer v. Raab, 81 N. Y. 235.) Here the decree provided for payment of the sum set forth in the decree only during the minority of the children. The appellant is, therefore, being punished for non-payment of alimony which in part at least it was never intended he should be required to pay. While it is *261true that he should have obtained a modification of the decree, nevertheless, in such a case, we should make a practical and not a narrow or technical application of the remedy given for a failure to obey a decree.
This order should be reversed with the privilege of renewing the motion after the appellant has made a new application for a modification of the judgment. The real conditions may then be given consideration in arriving at the amount which the appellant should pay. Thereafter, upon the failure to pay, the motion may be renewed and if advisable the appellant may then be punished. His attitude in the past would indicate that it will not be necessary to resort to any such remedy.
The order should be reversed and the matter remitted to Special Term for a rehearing.
Merrell and McAvoy, JJ., concur; Townley, J., and Finch, P. J., dissent.