
    Sophie Maran, Respondent, v. George Maran, Appellant.
    First Department,
    March 24, 1910.
    Husband and wife—alimony—discharge of defendant after imprisonment for contempt—rearrest not authorized—stay.
    A person who has been committed for contempt for failure' to pay alimony pendente lite, and has been released after serving the term of imprisonment prescribed by section 111 of the Code of Civil Procedure, cannot be rearrested for a failure to pay alimony subsequently accruing.
    The plaintiff, however, may pursue any other remedy, and while she is not entitled to a stay which will prevent the defendant from defending an action for separation, she is entitled to a stay" of affirmative proceedings on his counterclaim for the same relief.
    Laughlin, J., dissented, with opinion.
    Appeal by the defendant, George Maran, 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 21st day of February, 1910.
    
      Harry A. Gordon, for the appellant.
    
      Alraham H. Sarasohn, for the respondent.
   Scott, J.:

Appeal -from order staying all proceedings on the part of defendant. The action was begun October. 2, 1908, for a separation. Defendant answered denying the allegations of the complaint and counterclaiming for a separation on his part. On October 29,1908, an order was made directing defendant to pay forty dollars counsel fee and six dollars per-week alimony. He paid a part of the counsel fee and paid alimony -until January 25, 1909, when he ‘ceased paying. On March 30, 1909, defendant was adjudged guilty of contempt and sentenced to imprisonment. He remained iii jail until July 1,1909, when he was discharged under section 111 of the Code of Civil Procedure, having served three months. The action is on the calendar and has been called twice, having been put over each time on account of plaintiff’s condition of health. On January.26, 1910, by permission of the court, defendant served an amended answer containing a second counterclaim in which he prayed an annulment of the marriage on account of plaintiff’s insanity at the time it was contracted.

Under section .111 of the Code, defendant, having served the statutory period in jail for non-payment of alimony, cannot be rearrested even for alimony subsequently accruing. ( Winton v. Winton, 53 Hun, 4; affd., 117 N. Y. 623.) The plaintiff, however, is entitled to pursue any other remedy, even to stay affirmative action on-defendant’s part in the case. (Sibley v. Sibley, 76 App. Div. 132; Harney v. Harney, 110 id. 20.) lie may not, however, even for a contempt be deprived of an opportunity to defend himself against plaintiff’s attack. (Hovey v. Elliott, 167 U. S. 409.)

The order was, therefore, properly granted assuming, as we do, that its only effect is to restrain defendant from taking any step to enforce his counterclaims, leaving him free to meet and contest any . attempt on the part of plaintiff to enforce the cause of action set forth in her complaint. To resolve any doubt there may be as to the construction of the order it may be so modified as to limit its effect to proceeding on the part of defendant to enforce the counterclaims set forth in his amended answer, and as so modified affirmed, with ten dollars costs and disbursements to respondent.

Ihgbaham, P. J., Claeke and Milleb, JJ., concurred; Laughlih, J., dissented.

Laughlih, J. (dissenting):

The questions presented for decision on this appeal are whether in an action for separation which is based op. the marriage contract the defendant, who is in contempt of court for failing to obey an order for the ■ payment of alimony, may be stayed or should, be stayed from offering proof of a counterclaim duly and timely' pleaded for an annulment of the marriage. Quite likely such a counterclaim is not authorized (Taylor v. Taylor, 25 Misc. Rep. 566; affd., without opinion, 68 App. Div. 638; Conrad v. Conrad, 124 id. 780), but the Court of Appeals has not yet passed upon that question and the defendant should be left in a position to raise it by offering his evidence upon the trial. The order was not made upon the theory that the counterclaim was not authorized, and mani- 1 festly that question cannot be. thus raised. The order appears to have been made in recognition of the validity of the Counterclaim, and no question with respect to the right of defendant to interpose the counterclaim was raised at Special Term of has. been raised on'. ' appeal. I allude to it merely, to show that I am not expressing an opinion-on that question: • I have been unable to find any case in which it has been expressly decided that due process of law requires not only that a party shall be heard in direct defense of any charge made against him, but that he shall be permitted also to prove an affirmative defense. It is, however, contrary to the spirit of our institutions tó allow judgment- to bé entered against a party without hearing him on an affirmative defense duly pleaded which, if established, would defeat the plaintiff’s cause of action. So in the casé at bar, assuming, as we must for the purpose of this appeal, that the counterclaim is properly pleaded, then the plaintiff is seeking to enforce rights Under'a contract which the defendant, if he should be able to establish" his counterclaim is entitled to have canceled-. Of course the court may refuse to hear a party in contempt on an affirmative application by him, but the court cannot administer jus-. • tice by hearing only one side of a case, nor can it refuse to hear any evidence relating to. facts duly pleaded tending to. defeat the pláintiff’s cause of action merely because the defendant is. in contempt. of court. (Hovey v. Elliott, 167 U. S. 409, 444; Sibley v. Sibley, 76 App. Div. 132; Harney v. Harney, 110 id. 20.) If the. mar- . riage were procured by fraud the plaintiff could enforce the contract, and any right arising therefrom until it is. annulled^ by .a decree óf a court of competent jurisdiction. The decision of the majority of the court on this appeal would permit the party who pérpecrated the fraud to enjoy the fruits of her contract and aid her by a decree in so doing indefinitely,' turning a deaf ear to the affirmative :defense.

I am of opinion, therefore, that neither the Special Term nor this court- can lawfully make an order which permits the plaintiff to move the trial of the cause, and precludes the defendant from being heard upon or-offering evidence to sustain his counterclaim, and that if authority so to do were vested in the court, it should not have been so exercised.

I,-therefore, vote to modify the order so that it will merely stay ' affirmative 'action by the defendant in moving, the cause for trial or making any application to the court herein other than in defense of any step or proceeding taken by the plaintiff.

Order modified as directed in opinion and as modified affirmed, with ten dollars costs and disbursements to respondent. Settle order pn notice.  