
    Henrietta Amelia Aiken, Plaintiff, v. Eugene Dix Aiken, Defendant.
    (Supreme Court, Monroe Special Term,
    September, 1916.)
    Alimony — order requiring defendant to show cause why he should not he punished for contempt in failing to pay — Code Civ. Pro. § W3-
    Whether or not an order granted under section 1773 of the Code of Civil Procedure requiring the defendant to show cause why he should not be punished for contempt in failing to pay alimony is a court or a judge’s order will be determined not by the form of the order but by the facts whether or not at the time the judge granting the order was holding a term of court and authorized to grant a court order.
    (Syllabus by the Court.)
    Motion to punish for contempt for default in the payment of alimony.
    Bentley & Macfarlane, for motion.
    O’Brien & Powell (Charles C. O’Brien, of counsel), opposed.
   Rodenbeck, J.

Defendant appeared specially by counsel to oppose this motion on the ground that the order to show cause instituting it was not a court but a judge’s order. The Code of Civil Procedure provides that where a husband makes default in the payment of alimony the court may in its .discretion make an order requiring the husband to show cause before it ” why he should not be punished-for failure to make the payment (§ 1773) and it is contended that the order to show cause in this case not being entitled at a term of court and not being directed to be entered is not a court order and therefore did not confer jurisdiction upon the court to hear the motion.

In proceedings to punish for contempt the statute governing the proceedings must be literally followed, but the court will look back of the form of the order to ascertain whether irrespective of its form it was not in fact granted by the court. At the time that the order to show cause was made the judge who granted the order was holding an equity term of court and the order while not signed by him in open court was made while the term of court was in progress. Under such circumstances the irregularity in the form of the order and the neglect to enter it will be overlooked by the court and the order will be held sufficient as a court order although in form a judge’s order. Phinney v. Broschell, 80 N. Y. 544; Sweeney v. O’Dwyer, 197 N. Y. 499, 503; Matter of Munson, 95 App. Div. 23, 26; Matter of Knickerbocker Bank, 19 Barb. 602; Lowerre v. Owens, 14 App. Div. 215; Regan v. Traube, 16 Daly, 154; Coffin v. Lesster, 36 Hun, 347; Lachenmeyer v. Lachenmeyer, 26 id. 542; Albrecht v. Canfield, 92 id. 240.

There is a distinction between a court which has been defined as a u tribunal organized according to law and sitting at fixed times and places for the administration of justice ” (People ex rel. Eckerson v. Trustees, 151 N. Y. 75), and a judge out of court. The Code of Civil Procedure makes a distinction between a court order and a judge’s order without prescribing any difference in their form and where an application is required to be made to the court it can not be made to a judge out of court. Matter of Wright, Peters & Co., 73 App. Div. 75; People ex rel. Lower v. Donovan, 135 N. Y. 76. Likewise where a right is purely statutory and is required to be exercised by an application to a judge an order granted at special term is void (Heishon v. Knickerbocker Life Ins. Co., 77 N. Y. 278), but a judge’s order with an erroneous caption and notice to enter is not void but may be amended to comply with the actual fact. Mojarrieta v. Saenz, 80 N. Y. 553; Coffin v. Lesster, 36 Hun, 347.

Under these authorities it is absurd to say that a judge sitting on the bench at a term of court can not issue a judge’s order or that the same judge upon retiring to his chambers without having adjourned the term can not issue a court order.

The main purpose of the order to show cause in this case is to give notice to the defendant and it is accomplished where it is done by a court or judge’s order and the courts should not be too strict in the interpretation of Code provisions which do not go to a substantial right. The dispute in this case is an illustration of the evil of statutory provisions controlling the court in relation to matters of procedure. It does not matter in the slightest degree so far as the defendant is concerned whether he receives his notice to appear and show cause why he has not paid alimony which he has been directed to pay, by virtue of a motion, an order to show cause signed by a judge or issued by the court. The failure to enter a court order is an irregularity which may be corrected.

The plaintiff may amend the form of her order to show cause and enter it nunc pro tunc and the motion to punish for contempt is granted with ten dollars costs.

Ordered accordingly.  