
    Clara L. Gunn, Appellant, v. Arthur S. Gunn, Respondent.
    First Department,
    June 28, 1907.
    Husband and wife — payment óf accrued alimony enforced by contempt proceedings.
    The payment of alimony which has accrued between.the entering of the final judgment and the service of a certified copy thereof, with notice of entry and demand upon the defendant, may be enforced by contempt proceedings when it is shown that the defendant has given no security and has no property • which could be reached by sequestration, etc.
    Appeal by the plaintiff, Clara L. Gunn, from an order of the Supreme Court, made at the Bevy York Special Term and entered in the office of the clerk of the county of Bew York on the 18th day of February, 1907, denying her motion to punish the defendant for contempt of court.
    
      Leon Kronfeld, for the appellant. ■
    
      John G. Kennedy, for the respondent.
   Lambert, J.:

This is an appeal from an order of- the Special Term denying a motion to punish the defendant for contempt in refusing to pay alimony.' The case shows the final decree of divorce was entered on the 14th- day of May, 1906, which required the defendant to pay the plaintiff ten dollars per week for the support and maintenance of -the infant child of the marriage. On the 3d of January, 1907,' a certified copy of said final judgment, with notice of entry, was personally served upon the. defendant. At the same time a written demand for -the payment of. $320, the amount that had then accrued under the decree, was served upon the defendant. • He paid nothing upon said demand. Thereupon a motion was made upon an affidavit of . the plaintiff, verified on the fourth day of January, alleging that the defendant had given no security for the payment of the said alimony ; that said defendant had no property, real or personal, that could be reached in sequestration proceedings; that she did not know of any security that the defendant could give for the payment of said alimony-, and that;sequestration proceedings and a receivership would be ineffectual to'obtain payment of said alimony.

. The court denied the motion, stating that the failure to pay the alimony which accrued prior to the decree of divorce could not be made the basis of contempt proceedings; that there could be.no willful .disobedience of a direction of the court .without knowledge of such direction. .

I think the learned court fell into error. The obligation to pay accrued upon the entry of the judgment. The defendant was served with this judgment, and at the same time with a demand for what > had accrued from that time up to the date of the service of a. copy of the judgment and the demand. This obligation to pay cannot be enforced by execution; and as sequestration proceedings are alleged to be useless, the only effective way is by proceedings as for contempt'. If the learned court is. right, then the accrued alimony from the time of the entry of t.lie judgment-to the time of the service thereof is gone. You cannot wipe out an obligation fixed, by a judgment by a failure to serve a copy thereof for. a length of time. - That would be. to put a premium on divorce judgment debtors to keep themselves concealed.

In Woolworth v. Woolworth (115 App. Div. 405) -it appeared that an order'was made on the 26th day of January, 1905, requiring the defendant to pay the sum of ten'dollars per week from the 17th day of September, 1904. Oil the 21st day of September, 1905, service of a copy of this order and a demand was made on the’ defendant, which, having been refused, the court below adjudged the defendant in contempt for having refused and neglected to pay -to the plaintiff from September 17, 1904, until- January 17, 1906. Wé held that the original order provided that ten dollars a week, should be paid from .the 17tli day of September, 1904, and as the , demand for payment was made-on the 21st of September,. .1905, we cut down the provision of the order of .July 30, 1906, to the date of demand, the 25th -day of September, 1905, saying: “We think that the fine adjudged in this case must be limited to the amount due at the time that the-demand was made, as a demand is a necessary prerequisite in such contempt proceedings.”

That determination is inconsistent with the order appealed from, because a certified copy of that order was not served until the 21st day of September, 1905, but the requirement for payment related back to the time fixed in the order, which was the 17th of September, 1904. So here the time fixed by the judgment was the date of the entry. Alimony began to run then, and while contempt proceedings could not be instituted until after that judgment was served, yet the moment it was served the amount theretofore accrued became due and payable, and a demand having been made for that. and refused, contempt proceedings, which were the only ones taken, to collect the same were proper.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the matter remitted to the Special Term for further proceedings in accordance with the views herein expressed.

Ingbaham, McLaughlin, Claeee and Houghton, JJ., concurred.

. Order reversed, with ten dollars costs and disbursements, and matter remitted to Special Term.  