Polizotti v. Polizotti

Adel and Schmidt, JJ.

(dissenting). Section 1172 of the Civil Practice Act provides that a husband who defaults in payment of alimony directed to be paid by an order in a matrimonial action may be punished as for a contempt of court. On the issuance of an order to show cause ‘ ‘ proceedings must be taken to punish him, as prescribed in article nineteen of the judiciary law for the punishment of a contempt of court other than a criminal contempt ”.

If the proceedings mentioned in section 1172 could be construed as an independent special proceeding, there would be no difficulty in determining that such a proceeding commenced before final judgment in the action would survive the final judgment. However, section 761 of the Judiciary Law provides that An order to show cause is equivalent to a notice of motion; and the subsequent proceedings thereon are taken in the action or special proceeding, as upon a motion made therein.”

This section is derived from section 2273 of the Code of Civil Procedure, adopted in 1880, which read in part: ‘ ‘ An order to show cause may be made, either before or after the final judgment in the action, or the final order in the special proceeding. It is equivalent to a notice of motion; and the subsequent proceedings thereupon are taken in the action or special proceeding, as upon a motion made therein.”

Prior to the effective date of that section, there was a conflict of opinion as to whether or not a proceeding to punish a party to an action or a special proceeding for a civil contempt was an independent special proceeding or a proceeding in the action or special proceeding in which it was entitled. (Of. Pitt v. Davison, 37 N. Y. 235, 240, 241, and Watson v. Fitzsimmons, 5 Duer 629, holding that such proceedings were taken in the action, and Erie By. Co. v. Ramsey, 45 1ST. Y. 637; Brinkey v. Brinkey, 47 N. Y. 40, and Sixth Ave. R. R. Co. v. Gilbert Ele*234vated R. R. Co., 71 N. Y. 430, holding that the contempt proceeding was an independent special proceeding.)

Since the effective date of section 2273 of the Code of Civil Procedure, the decisions of the Court of Appeals are uniformly to the effect that a proceeding to punish a party for a contempt, instituted by an order to show cause, is a proceeding in the action and not an independent special proceeding. In view of these decisions, it must be held that a contempt order, made after judgment in a separation action, is made in a proceeding in an action and not in an independent special proceeding.

We are not aided by section 760 of the Judiciary Law, which provides that the order to show cause may be made either before or after the final judgment in the action. Such was the provision in section 2273 of the Code of Civil Procedure. However, it was not the legislative intent, in enacting that section, to make a new rule or provide for any new procedure in contempt proceedings. This is clearly shown by the revisers’ notes on the adoption of section 2273, in which they stated that the purpose of the section was to settle the rule in accordance with the decision of Pitt v. Davison (37 N. Y. 235, supra), in view of the conflict of authority hereinbefore mentioned. (See Jewelers ’ Mercantile Agency v. Rothschild, 155 N. Y. 255, 256.)

In Matter of Ungrich (201 N. Y. 415, 418-419) the rule which we believe is generally accepted is stated as follows: “ After judgment the court has no power to make an order affecting the substantial right of a party except for the purpose of carrying the judgment into effect or in those cases where special authority is given' by the Code (Kamp v. Kamp, 59 N. Y. 212; Fellows v. Eeermans, 13' Abb. [1ST. S.] 1; Gardner v. Gardner, 87 1ST. Y. 14), though this rule does not prevent the court from entertaining a motion to set aside or correct a judgment. Nor did the fact that the judgment was on appeal enhance the power of the court. Till the judgment should be reversed it was- a finality like other judgments.” See, also, to the same effect, Public Operating Corp. v. Weingart (255 App. Div. 443).

. Here the motion to punish was made before the trial and entry of judgment. The motion was referred to an Official Beferee to hear and determine and was brought on for hearing on December 7, 1951. However, the trial in the action was had on December 4th and 5th, and judgment was rendered by the Trial Justice on December 5, 1951, dismissing the complaint on the merits. The judgment was not entered until December 12, 1951. It has been held that an act of rendering a judgment by a justice is judicial; that of entering it in his docket is minis*235terial. The judicial function of the justice is completed when he has rendered his judgment. (Fish v. Emerson, 44 N. Y. 376, cited in Vogel v. Edwards, 283 N. Y. 118, 121.) Therefore, at the time the proof was submitted to the Official Beferee on December 7, 1951, there was no longer any action pending, the decision dismissing the complaint on the merits having been made on December 5, 1951. For these reasons, and on the authority of Hayes v. Hayes (208 N. Y. 600), the order adjudging the defendant in contempt should be reversed on the law and the motion to punish denied, without costs.

Wenzel, J., concurs with Nolan, P. J.; Carswell, J., concurs in result in memorandum; Adel and Schmidt, JJ., dissent and vote to reverse the order and to deny the motion, in memorandum.

Order adjudging defendant in contempt, imposing a fine and directing his commitment if default should be made in payment as provided therein modified so as to provide that such order is made, nunc pro tunc, as of December 7,1951, and, as so modified, the order is affirmed, with $10 costs and disbursements to respondent. [See post, pp. 819, 829.]