
    Anna Alessi, Plaintiff, v. Joseph Alessi, Defendant.
    Supreme Court, Special Term, Suffolk County,
    January 15, 1958.
    
      Selkowe, Johnson, Zimbalist $ Romanoff for plaintiff.
    
      Munley <& Meade for defendant.
   L. Barron Hill, J.

This is an application for an order of commitment of the defendant for failure to pay a fine of $900 imposed under a previous order of this court dated October 10, 1957. The fine and purge order contains a direction, that it be served on the defendant personally. This has not been done. If it cannot be done, the plaintiff’s remedy is,to move to resettle the order, not to disregard it. The cases cited by plaintiff are not in point. They are concerned with personal service of the basic order, i.e., the order which fixes the alimony and directs its payment. This subject is controlled by section 1172 of the Civil Practice Act. Here we are dealing with the directions in an order which establish the conditions for committing the defendant in this particular case. It is not a statute. It is a term of the order itself. On the subject of personal service of the basic order it might be well to point out that the case (Bishock v. Bishock, 280 App. Div. 830), which approved service on defendant’s attorney, makes no mention of section 1172 of the Civil Practice Act, particularly to the last sentence thereof, which calls for personal service of an uncertified copy on the husband. This amendment was adopted in an attempt to clarify the conflict existing in previous decisions' of the appellate courts (see Twelfth Annual Report of N. Y. Judicial Council, 1946, p. 243). Without some discussion of the problem or some allusion to the relevant statute, it is not apparant how this isolated decision can be accepted as reversing all previous holdings on the subject. Supporting the personal service view prior to the amendment, which will be noted did not change the personal service requirement, but only the need to have the served copy certified, see Tucci v. Tucci (230 App. Div. 737); Matzke v. Matzke (185 App. Div. 533) and especially the opinion in Shusterman v. Shusterman (184 Misc. 1060, affd. 269 App. Div. 788), which collates most of the existing cases on the question at that time. Accordingly, the motion is denied. Submit order.  