This proceeding was instituted to inquire into the cause of the detention of George V. Sims by the sheriff of the city and county of New York. The sheriff returned, as his justification for the restraint of the relator, a warrant of commitment issued out of the supreme court by the direction of Mr. Justice Andrews under date of December 27, 1888. This commitment is entitled in an action in which George V. Sims is plaintiff, and Ellen T. Sims, sued as Ellen T. Kelly, is defendant, and recites that an order was made therein on February 15, 1888, requiring the plaintiff to pay the defendant temporary alimony at the rate of $10 a week; that a certified copy of •such order had been served upon the plaintiff, and payment of the alimony demanded of him; that he had refused and neglected to pay the same; and that the court, being satisfied that sequestration or a direction to give security would not be effectual, had thereupon, on December 19, 1888, duly made an order “adjudging the said George V. Sims guilty of a contempt of court by reason of the premises aforesaid, and directing that the'said George Y. Sims, for the contempt aforesaid, of which he is guilty, be imprisoned by the sheriff of the city and county of New York in the jail of said county” until the said alimony, amounting, at the date of the commitment, to $450, shall be paid, together with $25 costs of the proceeding. The commitment, after these recitals, goes on to command the sheriff to arrest the said George Y. Sims, and imprison him in the said jail until the said sum of money and said costs are paid, or until he is discharged according to law. In addition to this commitment the papers on appeal contain the order of December 19,1888, adjudging the relator guilty of contempt. How this order got into the appeal papers does not appear. I find nothing in the record to indicate in what manner *212it was brought before the j udge who heard the argument upon the writ of habeascorpus. The certificate of the clerk, however, asserts that it was one of the-papers upon which the court below acted in making the order appealed from, and, as the correctness of the certificate is not questioned, I think we are bound to consider not only the commitment, but this order upon which it was-based, in passing upon the lawfulness of the relator’s imprisonment. In Swenarton v. Shupe, 40 Hun, 41, it was expressly decided that, where proceedings to punish a person for misconduct are taken under sections 14, 2266, and 2281 of the Code of Civil Procedure, “it is indispensable for the punishment of the party that-it should be made to appear and be determined by the-court that the misconduct complained of was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of a party to an action or special proceeding brought in court or before a judge or referee.”' The misconduct alleged in the case cited was the disobedience of an attorney to an order directing him to deposit certain moneys with the clerk of the court, and the proceeding was instituted under title 3 of chapter 17 of the Code of' Civil Procedure to punish the attorney for a civil contempt. But the suggestion has been made that a proceeding to enforce the payment of alimony, although regulated by that title, is not really a proceeding to punish for contempt at all; and hence that the decision in Swenarton v. Shupe, supra, is distinguishable from the present case on that ground. I cannot acquiesce in this view. It seems to me that the non-payment of alimony is a contempt punishable civilly under the third subdivision of section 14-of the Code, whicli confers upon a court of record the power to punish “a party to the action or special proceeding, an attorney, counselor, or other person, for the non-payment of a sum of money ordered or adjudged by the-court to be paid, in a case where, by law, ” execution cannot be awarded for the collection of such sum. Other provisions of the Code might be cited, to show that such a proceeding as that now before us is in the strictest sense-a proceeding to punish for contempt; but it will probably be sufficient to refer to the amendment of section 111, which was made in 1886. Laws 1886, c. 672. That section, as amended, provides that “no person shall be imprisoned within the prison walls of any jail for a longer period than three months-under an execution, or any other mandate against the person to enforce the-recovery of a sum of money less than $500 in amount, or under a commitmentupon a fine for contempt of court in the non-payment of alimony or counsel fees in a divorce case, where the amount so to be paid is less than the sum of $500. ” The language which I have emphasized is a recent legislative interpretation of the meaning of the several provisions of the Code relating to proceedings to enforce the payment of alimony, (sections 1773, 2266-2291,) and would seem to leave no room for doubt that such proceedings are proceedings to punish the party for contempt of court; and this has apparently -been the view of the general term Of this department, which has-twice applied the doctrine of Swenarton v. Shupe to proceedings to enforce the payment of alimony. Sandford v. Sandford, 40 Hun, 540; Mendel v. Mendel, 4 N. Y. St. Rep. 556. In both of-these cases it was held to be a fatal defect that the order contained no adjudication that the conduct of the party had been such as to defeat, impair, impede, or prejudice a right or remedy of" the party affected by it. I should deem these three decisions controlling, and should think that they required the release of the relator on writ of habeas corpus, were it not for the case of Fischer v. Langbein, 103 N. Y. 84, 8 N. E. Rep. 251. The opinion of the court of appeals in this ease seems to overrule in effect the decision of the general term in Swenarton v. Shupe, supra, and in the other cases asserting the jurisdictional necessity of an express adjudication that the contempt charged has defeated, impaired, impeded, or prejudiced a right or remedy of a party litigant. In Fischer v. Langbein neither the order nor the commitment, as they appear in the appeal papers, (court of *213appeals cases, June, 1886,) contain any such adjudication, and yet the court ■expressly upheld the commitment as containing all that the law required, and the result reached in the opinion, upon the consideration of the whole case, necessarily also implied that the order, although erroneous, was not so defective in any matter of substance as to render it void. In that case it was said that the order and commitment “presented all of the facts upon which the judgment of the court in awarding the commitment was based, ” and the same seems to be equally true in the case at bar. From this decision of the ■court of last resort it follows that the defect in the proceedings against the relator is not of such a character as to entitle him to relief by habeas corpus, and the order of the court below dismissing the writ should therefore be affirmed.