
    Gertrude L. Shaw, Respondent, v. William Barrett Shaw, Appellant.
    Second Department,
    December 30, 1912.
    Husband and wife—divorce — interlocutory decree for “permanent alimony ” — default in payment — contempt.
    Where in an action for divorce no temporary alimony has been ordered prior to the entry of the interlocutory decree, which provides that the defendant pay to the plaintiff a certain sum per month as permanent alimony, the defendant should not be required to pay alimony until after the entry of the final decree, and should not be adjudged guilty of contempt for default in making such payment.
    Woodward, J., dissented.
    Appeal by the defendant, William Barrett Shaw, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of October, 1912, adjudging him guilty of contempt of court.
    
      William Ford Upson [Francis J. McLoughlin with him on the brief], for the appellant.
    
      David F. Manning, for the respondent,
   Thomas, J.:

The plaintiff had an- interlocutory judgment for absolute divorce, which among other things provided “ that the defendant, William-Barrett Shaw, pay unto the plaintiff, Gertrude L. Shaw, the sum of forty dollars per month as permanent alimony for her support and’maintenance and the, support and maintenance of the infant child, Leslie B. Shaw, the issue of this marriage.” Usual measures were taken to obtain payment thereof, and for defendant’s alleged default in making payment he has been found guilty of contempt and ordered committed until the fine therefor shall be paid. Hence the appeal. The Code of Civil Procedure, section 1474, provides that “The interlocutory judgment may, in the discretion of the court, provide for the payment of alimony until the entry Of final judgment.” The respondent’s contention is that the alimony decreed to be paid is both the ad interim alimony So authorized, and that for which final judgment may provide. If so, the interlocutory judgment should be construed to read that the “ ‘defendant * * * pay unto the plaintiff * * * the sum of forty dollars per month as permanent alimony for her support and maintenance and the support and maintenance of the infant child ’ until and after the entry of final judgment. ” By such construction the term “ permanent alimony ” describes that decreed to be paid between the entry of the interlocutory judgment and the entry of the final judgment. The learned counsel for the plaintiff states that “ by the entry of the interlocutory judgment the alimony became permanent, for if the alimony had not been fixed and determined in the interlocutory judgment, no alimony would be awarded in the final judgment.” By such reasoning there is no distinction between the alimony allowable before and after final judgment, and yet the Code intends a distinction, and when the court characterized the alimony as permanent it could not have intended to include the temporary limited to the entry of final judgment, for which the Code provides. Ho temporary alimony had been ordered in the case previous to the entry of the interlocutory judgment, and if it were intended to begin at that time, appropriate words should have been used rather than those clearly showing the granting of permanent alimony upon and after the entry of the final judgment. If the plaintiff is in need, as she says, provision should have been made for. her pursuant to the definite directions of the Code, whereby the defendant could know that the decree intended that he should pay before and after final judgment. But the word “permanent” should not be distorted to aid her, nor should the plain direction of the Code be disregarded.

The order should be reversed, and the motion to punish for contempt denied.

Jenks, P. J., Caer and Bich,JJ., concurred; Woodward, J., dissented.

Order reversed, without costs, and motion to punish for contempt denied.  