Cutler v. Cutler
| Decision Date | 18 May 1961 |
| Citation | 28 Misc.2d 526,217 N.Y.S.2d 185 |
| Parties | Cecile CUTLER v. Bernard CUTLER. |
| Court | New York Supreme Court |
Berger & Kramer, New York City, for plaintiff.
Bernard J. Goldsmith, New York City, for defendant.
This is a motion by the defendant, pursuant to section 237-a of the Civil Practice Act, to vacate the service upon him of an order to show cause and the papers thereto annexed, on Sunday, April 16, 1961, while he was visiting his children in the home of the plaintiff. The order to show cause was issued on April 6, 1961, to punish the defendant for contempt of court for his failure to pay arrears of alimony due under a judgment of divorce in plaintiff's favor, which became final on May 18, 1960 . The order provided that personal service thereof and of the affidavits upon which it was granted on the defendant on or before April 24, 1961, will be deemed sufficient.
Defendant contends that the service of the order to show cause on a Sunday was illegal and void under section 2148 of the Penal Law, which reads as follows:
The plaintiff admits that service took place on a Sunday. She contends, however, that under the provisions of rule 21 of the Rules of Civil Practice contempt proceedings are exempt from usual restrictions of service and, therefore, do not come within the ambit of the section of the Penal Law upon which the defendant relies. Rule 21, entitled 'Manner of service of papers to begin a proceeding', provides in pertinent part as follows:
'The provisions of the statutes and rules relating to the mode of personal service of a summons shall apply to the service of any process or other paper whereby a proceeding is begun in a court, or before an officer, except a proceeding to punish for contempt, unless other special provision for the service thereof is made by law or rule. * * *'
The reason for the foregoing exception is that Article 19 of the Judiciary Law prescribes the procedure in contempt proceedings generally, and where they are brought to enforce the payment of alimony in default they must be instituted by an order requiring the husband to show cause, before the court at a time and place therein specified, why he should not be punished for his failure to make the payments due, and thereupon proceedings must be taken to punish him as prescribed in said Article 19. (Civil Practice Act, § 1172.) Such an order to show cause must contain directions as to the manner of service, the person upon whom service is to be made and the date by which it must be made.
While an order to show cause may be granted on a Sunday by a justice acting out of court, since there is no provision in any statute in this State forbidding him to do so (Banko v. Weber, 9 A.D .2d 720, 192 N.Y.S.2d 260, affirmed 7 N.Y.2d 758, 193 N.Y.S.2d 670), and section 5 of the Judiciary Law does not prevent the granting on Sunday 'of an injunction order by a justice of the supreme court when in his judgment it is necessary to prevent irremediable injury or the service of a summons with or without a complaint if accompanied by an injunction order and an order of such justice permiting service on that day', there is nothing in the Judiciary Law which permits the service of an order to show cause initiating contempt proceedings to be served on a Sunday or which exempts such service from the application of section 2148 of the Penal Law, which is derived from section 268 of the Penal Code. The court is, therefore, of the opinion that the service of such an order on a Sunday reasonably falls within the ambit of section 2148 of the Penal Law which forbids, with certain exceptions not applicable here, 'All service of legal process, of any kind whatever' on Sunday (Emphasis supplied).
While it is true that a motion to punish the husband for contempt for nonpayment of alimony provided for in a matrimonial judgment, is a...
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