
    Jennie Angeline Harney, Respondent, v. William Hyer Harney, Appellant.
    Second Department,
    December 29, 1905.
    Divorce — stay of defendant’s proceedings, on failure to pay alimony — when order to show cause maybe served in foreign State...
    While the court in an action for divorce .lias no power to strike out defendant’s • answer for his failure to obey an .order to páy alimóny pendente lite, it may stay affirmative proceedings on his part, such as moving the case for trial.When an order for alimony and counsel fees pendente lite has been entered on defendant’s stipulation and the order therefor has been 'personally served on him within the State and such order has subsequently, on his motion to vacate the same as not being filed in the proper county, been ordered to be filed in the proper county nunc pro tunc, such second order, and an order to show cause why he should- not be punished for contempt, and his proceedings stayed for his failure to pay alimony, may be served on defendant in another State. '
    Appeal by the defendant, William Hyer Harney, 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 '2.9th day of August, 1905. '
    
      Gerard Roberts, for the appellant.
    
      Joseph W. Middlebrook, for the respondent.
   Jenks, J.:

. The action is for an absolute divorce. Issue was joined. An order was entered on November 19, 1.904, upon the written stipula- . tion of the defendant and his attorney affording a counsel fee" and alimony pendente lite and for a reference. The order was served upon the defendant personally in .this State. The defendant never paid the counsel fee, and .quit payments of alimony after a short- > time.- The plaintiff then moved to punish him for contempt, to ■ stay him until he. complied with the order and for such other relief as might be just, equitable and proper. The Special Term denied the motion based upon the contempt for want of. .jurisdiction, - but. stayed the defendant from moving the trial until lie complied with the order for counsel fee- and alimony. The order was based upon the ground that the defendant “is absent from the State and seeking to avoid service, of process or order in this action.” This appeal is from an order refusing to vacate that part of the order granting the stay.

The defendant stopped payments of alimony in December, 1904. In May, 1905, he moved to vacate the order for counsel fee and alimony because it was not filed in the proper county, but the court ordered the clerk of the proper county to receive nunc fro tuno the order and the stipulation upon which it was based. The order and stipulation were then duly filed and notice thereof given to the attorney for the defendant. Thereafter, on June 22, 1905, the defendant was served personally in Jersey City with the original order and the order of correction'attached to a demand for counsel fee and the arrears of alimony, with notice of a motion to punish him for contempt, and a verbal demand was made also upon him. Service of similar papers was made also upon his attorneys in the city of Hew York. On June 28, Í905, both the defendant in Jersey City and his attorneys in Hew York were served "with the order to show cause, and the moving papers which afterwards coming on to be heard finally resulted in the order appealed from.

I am of opinion that the court had the power to grant this stay and that it was duly exercised in this case. In Carter v. Hodge (150 N. Y. 532, 537). the court, per Andrews, Oh. J.', say: “While a stay of proceedings in an ordinary action is in some sense, an injunction order, the power to grant such a stay is not given by the provisions of the title' relating to injunctions, but by distinct statutory provisions, or the practice of the court, where the procedure has not been otherwise prescribed.” In the Encyclopaedia of Pleading and Practice (Vol. 15, p. 360) it is said : Orders of court may be enforced by entering a nonsuit or a default against the disobedient party, or by denying him the’ privilege of appearing or moving in the suit until the order is complied with.” In Gross v. Clark (87 N. Y. 272) Earl, J., speaks of the power to stay proceedings until an order is obeyed as “ one of the inherent and common-law powers of the court, necessary and proper in the exercise of its jurisdiction, and it has not been taken away or superseded by any provision of the Code.” In Hovey v. Elliott (145 N. Y. 126, 138) the court, per Haight, J., say : “ It may be that the cases above referred to are not in strict accord with the-rule recognized in this State- in which & court of equity may refuse to a party in contempt the benefit of; proceedings pending in it when asked by him as- a favor until he has. .purged himself of his contempt. (Brinkley v. Brinkley, 47 N. Y. 40; Walker v. Walker, 82 id. 260; Gross v. Clark, 87 id. 272.) But in this State the Supreme Court on its equity side is invested by the .Constitution with .all the power and authority that formerly existed in the High Court Of Chancery in England, the common-law remaining in force excepting so far as it has been changed-by statute. -.The Legislature, in this State, therefore, may not be- able to limit or deprive the • Supreme Court of any of its jurisdiction or powers.”

Zimmermam v. Zimmerman (14 N. Y. Supp. 444) and Rochester Lamp Co. v. Brigham (1 Ápp. Div. 490) are authorities for the proposition that under the circumstances the order to show cause was properly served on the defendant. In Knott v. Knott (6 App. Div. 589) it was held that the defendant, who had notice of the motion for alimony and counsel fee, who, therefore, appeared before the referee and contested it, and who appeared before the court when the final order therefor was made, but who then left the State so that. the order was no.t served upon him, was nevertheless'in contempt, and that his answer could be stricken out, but not his appearance.. The. case at bar is stronger, in that the order for counsel fee and alimony Was entered upon the written stipulation of the defendant and his - attorney, and as originally entered it was served upon him persohally in the State, and- that order and the order nuno pro tunc were served upon him personally in the State of Hew Jersey. In Davis v. Davis (83 Hun, 500) the defendant after joining issue left the State to avoid service of the order for alimony and counsel, fee) but was served therewith in the State of Massachusetts; and the court . held in exception - to the general rule that it could punish for a contempt. (See, too, 1 Nichols N. Y. Pr. 334, 335.) Since Hovey v. Elliott (167 U. S. 409). the courts have no power to strike out an answer in such a case by .way. of punishment, but that judgment does not affect the principle that the courts may-stay the- defendant from any affirmative progressive action, like unto that of moving the case for trial. The question presented- by this appeal is not whether the defendant may be punished for a contempt, but whether the defendant, with full knowledge of an order of the court and of its terms, made upon his own written consent, who willfully disobeys the order, can ‘complain if the court denies him the right during such, disobedience to move affirmatively in the action in which the order was made. The element of “ contempt ” in the case is the contempt into which the'court would put itself if it permitted one to act affirmatively in a suit- while he was a disobedient suitor. -

I think that the order must be affirmed, with ten dollars costs and disbursements. .

Bartlett, Hooker, Rich and Miller, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  