(concurring.) On the 23d day of January, 1889, a writ of habeas corpus was issued by one of the justices of this court to the sheriff, requiring him to produce the body of the relator, George V. Sims, by him imprisoned, and to certify the time and cause of such imprisonment and ■detention. Upon the return-day of the habeas corpus, the sheriff returned that the true cause of the detention of the said Sims was a warrant of commitment, a copy of which was thereto annexed, from which it appeared that, on the 15th of February, 1888, an order was made in an action pending in this court, wherein said George V. Sims was plaintiff, and Ellen T. Sims, sued as Ellen T. Kelly, was defendant, whereby the plaintiff was required, among •other things, to pay to the defendant or her attorney during the pendency, and until the final determination of the action, the sum of $10 per week for the defendant’s alimony; and that the court, being satisfied that a copy of said order had been served upon said Sims, and a personal demand for the payment of said alimony made, and that payment thereof had been refused and neglected, and that sequestration, or a direction to give security, would not be effectual, an order was thereupon entered upon the 19th of December, 1888, adjudging the said Sims guilty of a contempt of court, by reason of the facts aforesaid, and directing that the said Sims be imprisoned by the sheriff of New York until the said alimony, amounting, at the date of the commitment, to the sum of $450, and the costs of the proceedings to compel such payment,—to-wit, $25,—be paid, or until the said Sims be discharged according to law, and that a warrant issue committing the said Sims accordingly, and whereby the said sheriff was required to arrest the said Sims and imprison him until the said sum of money, and the costs and expenses, were paid, or until he was discharged according to law. There was also contained in the papers upon this appeal the order referred to in this commitment, but how it forms part of the record upon these proceedings we are unable to comprehend, as it does not appear upon the return by the sheriff, and forms no part of the commitment to which reference has already been made, and which •commitment was the authority for the sheriff to hold his prisoner. The counsel for the petitioner orally demurred to the sheriff’s return for its alleged insufficiency to warrant the holding of the prisoner, and upon a hearing before the court the motion to discharge the prisoner was denied, and from the order thereupon entered this appeal is taken.
The objection to the right of the sheriff to hold the prisoner which is made on this appeal is that there was no adjudication that the prisoner was fined •any sum. to indemnify the respondent, or. for any purpose whatever; that there was simply a general adjudication that he was guilty of contempt of court; and it was further ordered that for the contempt he be imprisoned. Of ■course, if the order of the court is not to be considered as brought up by these habeas corpus proceedings, as it cannot regularly be, then there is no evidence before the court but that the court below in its order has adjudged that the neglect of the petitioner was calculated to or actually did defeat, impair, im*214pede, or prejudice the rights or remedies of the defendant in the action above mentioned, and consequently the authorities cited in support of the position taken by the prisoner cannot prevail, because those adjudications proceeded entirely upon the ground that there had been no adjudication of the kind mentioned in the order directing the payment, and we think that upon this account the regularity of the proceeding cannot be reviewed by habeas corpus, and the only way in which the invalidity of the order directing the payment can be assailed would be by appeal from such order. If, however, we consider the order as before the court upon this proceeding, then the case of Swenarton v. Shupe, 40 Hun, 41, would seem to be an authority against the validity of the proceedings, because of the want of notice of the adjudication in the order. We think, however, that the learned judge, in making this decision, has overlooked the fact that this proceeding is not to punish for contempt, and that, by the force of section 1773, where a husband makes default in paying alimony, and where such payment cannot be enforced by means of sequestration proceedings, or by resorting to security, the court may issue, without any other facts before it, an order to show cause why the husband should not be punished for his failure to make the payment. It is a familiar rule governing the granting of motions that the facts upon which an order to show cause is granted must make out a prima facie case; and, if it was sufficient to authorize the granting of an order to show cause simply that this payment was not made, and such payment could not be enforced by sequestration proceedings, or by resorting to security, then clearly it was in the contemplation of the framers of the Code that, upon these facts appearing to the satisfaction of the court, the final order might issue. But it is said that, pursuant to section 1773 of the Code, proceedings must be taken to punish, as prescribed in title 3, c. 17, of this act. Title 3 regulates the proceedings to punish con-tempts of court other than a criminal contempt; and the first section of that title (section 2266) provides that, in any case where it is specially prescribed by law, a court has power to punish by fine and imprisonment, or either, or generally as a contempt, a neglect or violation of duty, or other misconduct, and where a right or remedy of a party to a civil action or special proceeding pending in the court or before a judge may be defeated, impaired, impeded, or prejudiced thereby, the offense must be punished as prescribed in this article. How, section 1773 provides that, where the husband fails to make the payment of alimony, he is to be punished in the same manner as prescribed by that article. It is clear that this was intended only to regulate the form of procedure, and the form of procedure as regulated by this title is only that which takes place after the issuing of the order to show cause. All the preliminaries prior to that time contained in this title are entirely inapplicable. Section 2283 provides that, upon the return of an order to show cause, the questions which arise must be determined as upon any other motion, and, if the determination is to the effect specified in the last section but one, the order thereupon must be made to the same effect as the final order therein described. The last section but one (section 2281) provides that, if it is determined that the accused has committed the offense charged, and that it was-calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party to an action-or special proceeding, the court must make a .final order accordingly, and directing that he be punished by fine or imprisonment, or both, as the nature of the ease requires, and that the warrant of commitment must issue accordingly. It is true that this provision of the Code apparently requires, in a proceeding of this description, that this adjudication should be had. But, as it is entirely inconsistent with the nature of the proceeding, and with what it is necessary to prove in order to give the court authority to initiate the proceedings for the imprisonment of the defaulting party, it would seem to be inconsistent with the previous provisions, and not intended to apply to proceedings of this character. In these proceed*215ings the party proceeded against is not fined. It is not a fine which he is called upon to pay. It is the payment of money required by an order to be paid, which, because of the peculiar nature of the requirement, this method of collection has always been recognized to exist ever since the adoption of the Revised Statutes, and before. If the party is entitled, as she is under section 1773, to proceed to punish the delinquent upon making proof of non-payment of a sum, it seems to be an idle ceremony to say that the court must make any other adjudication than that there has been such failure. Upon the whole case, therefore, we are of opinion that the commitment was regular, and showed jurisdiction in the court to issue the same. The writ of habeas corpus should be dismissed, with $10 costs and disbursements, and the prisoner remanded.