
    Jeannie L. Conklin, Appellant, v. Henry Conklin, Respondent.
    (No. 2.)
    Second Department,
    March 11, 1908.
    Husband and wife — contempt for failure to pay alimony — failure to show that sequestration would be ineffectual.
    A motion to punish a defendant for contempt for failure to pay alimony will be denied when the plaintiff fails to show that a sequestration of his property would be ineffectual.
    Rich, J., dissented.
    Appeal by the plaintiff, Jeannie L. Conklin, 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 28th day of January, 1907, denying the plaintiff’s motion to punish the defendant for contempt of court for failing to pay alimony under a final judgment of divorce.
    
      Thomas Gregory [ William H. Hamilton with him on the brief], for the appellant.
    
      I. H. Jacobson, for the respondent
   Hiller, J.:

The plaintiff’s motion to punish the defendant for contempt was denied because it did not appear presumptively to the satisfaction of the court that payment could not be enforced by means of sequestration proceedings, and an order sequestering the defendant’s personal property and .the rents and profits of his real property (the appeal from, which was argued herewith) was made. Section 1773 of the Code of Civil Procedure provides that the order to show cause in contempt proceedings may he made without any previous sequestration or direction to give security where the court is satisfied that they would be ineffectual. The plaintiff made no effort to show that sequestration proceedings would be ineffectual. .There was $675 alimony due her. The defendant showed that there were three policies of insurance on his life, having a present loan value of $230 each, and a fourth having a present loan value of $660. The plaintiff is the beneficiary named in each. The first three policies aforesaid provide that the insured may change the beneficiary without the latter’s consent, and the defendant has undertaken to make his estate the beneficiary. The other policy provides that the beneficiary cannot be changed without her consent, but the policy reverts to the defendant in case of her prior death. It is not necessary now to determine the nature of the defendant’s interest in that policy, or whether anything can be realized by a sale of such interest, for it at least presumptively appears that he has an interest in the other three policies upon which more than enough can be realized to pay the amount of alimony due, and the plaintiff cannot defeat the defendant’s right to change the beneficiary by retaining possession of the policies unless she has a right to retain possession. There is nothing in the record before us to show that she has any interest whatever except as beneficiary, but we do not undertake now to pass upon her rights. All that we decide is that the learned justice properly denied the motion to punish for contempt for the reason that it did not appear that sequestration proceedings would be ineffectual.

Woodward, Jenks and G-aynor, JJ., concurred; Rich, J., dissented.

Order affirmed, with ten dollars costs and disbursements. 
      
       See Conklin v. Conklin, No. 1 (125 App. Div. 278).— [Rep,
     