Opinion
May 9, 1912.
Abraham H. Kesselman [ Meier Steinbrink with him on the brief], for the appellant.
No appearance or brief for the respondent.
Plaintiff brought this action for separation on the ground of cruel and inhuman treatment. Defendant answered and interposed a counterclaim demanding a judgment of separation in her favor upon the ground of abandonment and cruel and inhuman treatment. Upon the trial plaintiff defaulted, and judgment was given in favor of defendant upon the cause of action set up by her as a counterclaim. This judgment was granted April 12, 1911. Pending the action, and on January 4, 1911, an order was made directing payment by plaintiff to defendant of a counsel fee of seventy-five dollars and alimony at the rate of twelve dollars a week. The judgment provided for the payment of alimony at the same rate. A certified copy of the order and judgment was delivered to plaintiff personally at Toronto, Can., on the 24th of November, 1911, and at that time a demand was made upon him for the payment both of the counsel fee and of the arrears of alimony. The demand was made pursuant to written authority therefor given by the defendant. On November 28, 1911, upon proof by affidavit of these facts, and further proof that the plaintiff was without the jurisdiction of this court, and that plaintiff had no property which could be sequestrated, nor any property which could be reached by a receiver, the court at Special Term granted an order to show cause why he should not be punished for failure to make the payments directed by the order of January fourth, and the final judgment of April twelfth. This order to show cause provided that service of a copy thereof on the attorney who appeared for him in the action should be sufficient service. From an order denying the motion this appeal is taken. There was no appearance for the respondent upon the appeal.
Two interesting questions have been presented by the learned counsel for the appellant: First, whether the service of a certified copy of the order and of the final judgment without this State was sufficient personal service upon the plaintiff to justify instituting proceedings for contempt; and, second, whether, if such was the case, service of the order to show cause upon the attorney who appeared for him in the action pursuant to the express direction of the court was sufficient service to confer jurisdiction.
It seems to us unnecessary to determine either of these questions, as to one of which at least there is a decided conflict of opinion. It affirmatively appears that the only remedy under the circumstances which the defendant could ask would be the imposition of a fine and the committing of plaintiff to custody until the further order of the court. But the court will not do a futile thing. "Inasmuch as after the commencement of the action he had gone out of the jurisdiction it would not have availed to order him fined and committed." ( Brinkley v. Brinkley, 47 N.Y. 40, on p. 49.) Under the circumstances, therefore, we think that the learned court at Special Term was justified in denying the motion, and the order appealed from should be affirmed, without costs.
HIRSCHBERG, THOMAS, CARR and WOODWARD, JJ., concurred.
Order affirmed, without costs.