
    Winton v. Winton.
    
      (Supreme Court, General Term, First Department.
    
    May 24, 1889.)
    Divorce—Non-Payment of Alimony—Contempt.
    Code Civil Proc. N. "ST. § 111, declares and restricts the time for which a person may be imprisoned under a commitment upon a fine for contempt of court in the non-payment of alimony in a divorce case, and declares that “the prisoner shall not be again imprisoned upon a like process issued in the same action, or arrested in any action upon any judgment under which the same may have been granted. ” Held, that where the defendant, imprisoned for non-payment of alimony awarded by the judgment previously accruing, has remained in prison for the full term provided for in the1 above section, he cannot be again imprisoned for the non-payment of alimony accruing during his imprisonment.
    Appeal from special term, Hew York county.
    Action by Eliza L. Winton against Walter H. Winton for divorce. Defendant appeals from an order adjudging him in contempt for non-payment of alimony.
    Argued before Van Biutnt, P. J„ and Brady and Daniels, JJ.
    
    
      George W. Stephens, for appellant. E. P. Wilder, for respondent.
   Daniels, J.

The defendant was arrested and imprisoned for the non-payment of alimony previously accruing, directed to be paid to the plaintiff by the judgment. He remained in prison under the commitment for that default in payment for the full term for which he could be imprisoned under section 111 of the Code of Civil Procedure; and it is because of that cireum•stanee that this proceeding has been resisted for his imprisonment again for the non-payment of other sums of money afterwards becoming due under the judgment. It was the object of this section of the Code, as it was enacted in 1883, to prevent the abuses which were considered to have arisen in the imprisonment of persons in civil actions, under the law as it previously existed. And by this section the time for which a person may be imprisoned under an execution or other mandate to enforce the recovery of a sum of money has been declared and restricted, and the section has been so framed as expressly to include “a commitment upon a fine for contempt of court in the non-payment of alimony, or counsel fees, in a divorce case. ” ' Then it has prescribed the length of time to which the imprisonment may be extended for such nonpayment. And the section has further and finally declared, that “the prisoner shall not be again imprisoned upon a like process issued in the same action, or arrested in any action upon any judgment under which the same may have been granted. ” This language, in its application to this ease, is broad and plain, forbidding a further imprisonment upon a like process issued in the same action; and it has direct reference to the imprisonment previously authorized and sanctioned by this section, and by its meaning and import restricts and limits the imprisonment to what has been before provided for and described. If that is not to be the effect of this concluding language of the. .section, then it has accomplished nothing for the relief of persons imprisoned in an action for a divorce; for, as the law previously existed, where a person had been imprisoned for a contempt for the non-payment of a sum of money, and had been discharged from imprisonment by the court for his inability to ■comply with the order, he could not afterwards be arrested and imprisoned for the same default. There was no necessity for legislation to secure relief in that respect, for if the person could not endure the imprisonment, or his -circumstances were such that he could not comply with the order for the payment of the money, and the court terminated and relieved him from imprisonment for either of such causes, his further commitment to enforce the payment of the same sum of money was neither sanctioned nor provided for by any provision of the law. And for the future security and protection of the person there was no necessity, therefore, for the legislature to declare that he should not be again imprisoned for the same cause. What was intended by the enactment of this section was to secure still further relief to the party who had previously been imprisoned and lawfully discharged; and that was-described and directed in clear language, prohibiting the person from being again imprisoned upon a like process, not for the non-payment of the same-sum of money, but issued in the same action. This language is very general, and entirely unrestrained, and its obvious meaning is that no further process shall be issued against a person in an action for divorce upon which he shall be committed to prison for the non-payment of a sum of money, after he has-been once imprisoned "and lawfully discharged under the preceding provision-of the section. If the enactment is not to secure this end, then it has accomplished no substantial benefit to the defendant required to pay alimony in an action for a divorce, for he may still be perpetually imprisoned, if this section shall be held to permit his imprisonment after he has once been legally discharged under it. If that discharge is not to secure his protection against like-proceedings afterwards instituted under the judgment, then, after he has-served his first three or six months in prison and been discharged, he may be immediately arrested and committed again to prison for the non-payment of alimony accruing under the judgment while his imprisonment was continued-, and this may go on from time to time, through the entire period of his natural life. The intention of the law was not to permit this continued oppression and incarceration, but it was to restrict the right of imprisonment, when the period mentioned in the section should be fully endured by the party, to-that imprisonment only, excluding after that the power to arrest or imprison the person in default of future payments. Neither this construction nor the provisions contained in the section deprives the party in whose favor the judgment is recovered from any other remedy for its enforcement and collection, for it has provided that, notwithstanding such a discharge, the judgment creditor in the execution, or the person at whose instance the mandate was issued, has the same remedy against the property of the person imprisoned which existed before the execution or mandate was issued. If the judgment debtor, therefore, has property or means which can be resorted to for the payment of the judgment, the creditor is entitled to make use of it to obtain satisfaction from those sources. But the further imprisonment of the person of the debtor has been prohibited. The order from which the appeal has been taken should therefore be reversed, and the motion denied, together with the usual costs and disbursements. All concur.  