
    Henry B. Shepard, Appellant, v. Florence A. Shepard, Respondent.
    
      Contempt — when the non-payment of alimony constitutes a contempt — effect of the dismissal of the complaint — what costs only may be enforced by proceedings for contempt.
    
    In an action, brought by a husband to obtain a decree of absolute divorce from his wife, an order was made directing the payment of alimony pendente lite. The plaintiff having failed to comply with that order an order was made on May 14, 1900, adjudging that the amount of alimony due and unpaid was §1,500, and that the plaintiff was guilty of contempt for not paying it. The order, after providing for the payment of a portion of the sum due, directed that the rest be paid in monthly installments of §35 each, and that this disposition of the matter should be subject to the further order of the court.
    May 25, 1904, before the expiration of the period during which the monthly installments were to be paid, the complaint, answer and counterclaim in the action were dismissed. At this time there was unpaid on the past-due alimony directed to be paid by the order of May 14, 1900, the sum of §553.43.
    
      Meld, that the termination of the action did not discharge the plaintiff from the payment of the past-due alimony;
    That the court had power to adjudge the plaintiff guilty of contempt for not paying such sum;
    That the court did not, however, have power to adjudge the plaintiff guilty of contempt for a failure to pay costs, expenses, fees and charges, as the payment of these items, save such costs as were embraced in the immediate motion, could not be enforced by contempt proceedings.
    Appeal by the plaintiff, Henry B. Shepard, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 14th ■day of October, 1904, adjudging the plaintiff guilty of contempt for a failure to pay alimony, granted pendente lite, and committing him to the common jail of Hew York county until he should pay the amount remaining due and unpaid, with interest thereon, in addition to the costs, expenses, fees and charges.
    The action was brought to obtain a decree of absolute divorce.
    
      Albert I. Sire, for the appellant.
   Hatch, J.:

The appeal in this case is from an order made in the last of eleven motions, concerning alimony granted pendente Ute, which have been made during the progress of this litigation. When the action between these parties was first begun an order for alimony 'pendente lite was granted. With that order the plaintiff failed to comply. Thereupon and on May 14, 1900, application was made for an order adjudging the plaintiff in contempt for failure to pay the amount ordered paid. This motion resulted in an order under that date adjudging that the amount due and unpaid of alimony was the sum of $1,500. It adjudged the defendant in contempt for non-payment and made provision for the method and manner in which such sum should be paid. The plaintiff complied with this order in part and in part failed to comply. Other motions from time to time were made to compel the payment of the sum awarded with partial, but never complete success. On May 25, 1904, the complaint in this action was dismissed, together with the answer of the defendant, which had interposed counterclaims to plaintiff’s cause of action, without costs to either party as against the other. On that date there was unpaid upon the past-due alimony, adjudged to be paid by the order of May 14, 1900, the sum of $555.43 and interest thereon. The present order adjudges the plaintiff in contempt for the non-payment of such sum.

It is claimed by the plaintiff that upon the dismissal of the complaint, answer and counterclaim all right to alimony, either past or future, ceased, and that, therefore, no authority existed in the court to make the order appealed from. This contention is based upon two grounds, the first of which is that the order of May 14, 1900, after providing for the payment of a specified sum, directed the remainder to be paid in monthly installments of thirty-five dollars each month, and that such period in which such payments were to be made had not expired at the time of the dismissal of the action; that by the terms of the order it was operative only during the pendency of the action, and, second, that the alimony absolutely ceased and became discharged by the dismissal. These contentions are unavailing to defeat this order. So far as past alimony is concerned, „ for which the defendant was adjudged to be liable, it was a fixed sum, due and payable at the time the first order was made which adjudged the plaintiff in contempt. The distribution of payments in stipulated monthly sums did not have the effect of discharging the defendant from the obligation to pay the whole amount of the alimony, but was a mere method by which the burden which had been imposed upon the plaintiff was made easier to bear. It was a favor to him and in order to receive the benefits which accrued to him thereby he was bound to make exact compliance with the terms of the order. He not only made one, but repeated defaults in this respect. Indeed the history of this litigation shows that in this regard he was not only persistently in default in making the payments, but willfully so. If the order be construed as limiting the payment of alimony during the pendency of the action, it was nevertheless alimony which had accrued during such period and was, therefore, within its terms. But in addition to this, by provision of the order plaintiff was not only to pay the specific sum and the thirty-five dollars per month during the pendency of the action, but such payments and such disposition by the express terms of the order were made subject to the further order of the court. The plaintiff having defaulted in compliance not alone with the order of May 14, 1900, but with all the others, he cannot now avail himself of the provision in the order authorizing monthly payments, but has subjected himself to the further order of the court, which has determined, as it had the right to determine, that the whole sum remaining due and unpaid should be discharged at once. ¡Nor did the termination of the action discharge the plaintiff from the payment of the past-due alimony. Undoubtedly, it had the effect of relieving him from liability to pay the specific sum awarded to the defendant as continuing alimony during the pendency of the action, but even then, as the dismissal left the marital relation, so far as the legal obligations of the parties are concerned, unimpaired, there still rested upon him the duty of support and maintenance of the wife, the only change in the plaintiff’s position in this respect being that, whereas prior to the dismissal, the court had fixed a specific sum which it deemed proper in discharge of the marital obligation to support and maintain, the plaintiff is now relegated to the duty of himself determining the amount necessary in discharge of this obligation, subject, however, to the control of the courts upon a proper application. It has been determined many times that alimony awarded, either pendente lite or upon the final' determination of the litigation, is' founded upon the marital obligation to support and maintain, and is awarded by the court in enforcement of this obligation and duty. (Romaine v. Chauncey, 129 N. Y. 566; Allen v. Farmers' Loan & Trust Co., 18 App. Div. 27.) While the sum awarded does not, when it becomes due and payable, establish it as a debt in the strict sense of that term, yet it partakes of that nature, and payment is enforced by the courts, either summarily or by other proceedings, and execution may be awarded to recover it. (Knapp v. Knapp, 134 Mass. 353.) An equitable action may be maintained to reach a trust fund and apply the sum in discharge of the accrued obligation. (Wetmore v. Wetmore, 149 N. Y. 520.) The death of the husband discharges the liability, as the obligation is then at an end, but past-due alimony may in such event be enforced against the estate of the decedent. (Knapp v. Knapp, supra.) The amount of alimony due upon the discontinuance of the action is the sum measured and fixed by the court, which was required in discharge of the obligation and duty. As that obligation during such period was continuous and in existence, the husband was required to discharge it by payment, and it cannot be cut down, lessened or modified save by an order of the court, where the husband has failed to discharge it, based upon any theory of its subsequent discontinuance. As it measured the obligation for that period it stood as a fixed charge against the husband, and he is required to discharge it. It may be enforced against him by any of the remedies permissible to be invoked during the pendency of the action. The order, therefore, in this respect is proper. It, however, has gone further than is authorized, as it also adjudges that the defendant is in contempt for failure to pay costs, expenses, fees and charges. Failure to pay the sum required by these terms, save such costs as are embraced in the immediate motion, cannot be enforced by a summary proceeding to adjudge the defendant in contempt. To this extent the order is unauthorized.

It should, therefore, be modified by eliminating these items from the requirement to pay, and as so modified the order should be affirmed, without costs to either party upon this appeal.

Van Brunt, P. J., Patterson, Ingraham and Laughlin, J J., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs.  