
    Rachel Uttal, Appellant, v. Simon Uttal, Respondent.
    Second Department,
    October 20, 1910.
    Husband and wife — separation — failure to pay temporary alimony — contempt proceedings — practice—proof that sequestration of property would be ineffectual — court — discretionary power of Appellate Division.
    Before granting an order to show cause wiry a husband sued for a separation should not be punished for contempt in failing to pay the temporary alimony, it should presumptively appear to the satisfaction of the court that payment cannot be enforced by sequestration proceedings, or by resorting to the security, if any, given as prescribed in the statute. But such order may be made Without previous sequestration or direction to give security if the court is satisfied that it will be ineffectual.
    Where on such motion it appears that the defendant ordered to pay alimony was excused from paying a counsel fee upon the sole ground of poverty, there is a presumption that he had no property which could be reached through a receiver.
    Under such circumstances the defendant should be adjudged in contempt for failure to pay alimony although no security was given and there is no allegation in the moving papers that sequestration would be ineffectual.
    Even though the granting or denial of such motion to punish for contempt is in the discretion of the Supreme Court, it affects a substantial right, and the Appellate Division, being a part of the Supreme Court, may exercise that discretion.
    Appeal by the plaintiff, Rachel Uttal, 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 1st day of June, 1910, denying the plaintiff’s motion to punish defendant for contempt.
    
      Hirsh & Rasquin, for the appellant.
    
      George F. Hickey [Simon Uttal, in person, with him on the brief], for the respondent.
   Burr, J.:

This action is brought for a separation on the ground of cruel and inhuman treatment of plaintiff by defendant. On the 22d day of September, 1909, an order was duly made directing defendant during the pendency of said action to pay plaintiff the sum of four dollars per week for her support and maintenance and that of the two children of the marriage, and a certified copy of such order was served on defendant personally within this State. On April 2,1910, defendant was in arrears in payment of the sums required by said order to be paid in the amount of $110. Thereupon plaintiff caused a written demand for payment to be served upon him, and upon affidavits showing the pendency of this action, the granting of said order, due service of a copy thereof, and of such demand, and failure on defendant’s part to comply therewith, the court granted an order requiring him to show cause why he should not be punished for contempt. Upon the return day of said order defendant appeared, but submitted no affidavits in opposition to said motion, nor, so far as the record discloses, was any. excuse presented for his disobedience. From the order denying the motion to punish for contempt this appeal is taken.

Before granting the order to show cause, upon which this proceeding is based, it should appear presumptively to the satisfaction of the court granting the same that payment cannot be enforced by sequestration proceedings, or by resorting to the security if any given as prescribed in the statute. But such order may be made without any previous sequestration or direction to give security when the .court is satisfied that this will be ineffectual. (Code Civ. Proc. § 1773 ; Conklin v. Conklin, No. 2, 125 App. Div. 280.) It does not appear that any security was given in this case, and there is no direct allegation in the moving papers that sequestration would be ineffectual.. But it does appear that on the sole ground of defendant’s poverty he was not required to pay any counsel fee, and that for the support of his wife and two children he was only called upon to pay four dollars a week. From this fact alone we think that a presumption would arise that defendant had no property which could.be reached through ,a receiver. It was urged on the argument that the granting or denial of the motion rested in discretion, and that for reasons which do not appear in the record that d is eretion was wisely exercised at Special Term. It is hardly necessary for us to say that we can consider nothing which does not appear in the record. The order in this case affects a substantial right, and if it be deemed to rest in discretion, the discretion to be exercised is that of the Supreme Court, "and the Appellate Division is as much a part of the Supreme Court as the Special Term at which the application was made.” (Ellensohn v. Keyes, 6 App. Div. 601.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to punish for contempt granted, with ten dollars costs, and the proceedings remitted to the Special Term to proceed accordingly.

Woodward, Thomas, Rich and Carr, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion to punish for contempt granted, with ten dollars costs, and proceedings remitted to the Special Term to proceed accordingly.  