Polizotti v. Polizotti

Nolan, P. J. This action for a separation was commenced in June, 1947. In July, 1947, plaintiff obtained an order directing the defendant to pay alimony pendente lite in the sum of $25 a week. In October, 1951, plaintiff, by order to show cause, commenced proceedings to punish defendant for contempt for failure to pay such alimony accrued since August, 1947. The motion to punish for contempt was referred to an Official Referee to hear and determine. When the matter came on to be heard before the Official Referee on December 7,1951, the action had been tried, and it is conceded that a judgment was thereafter entered on December 12, 1951, dismissing the complaint. Thereafter, and on January 15, 1952, an order was made by the Official Referee, adjudging the defendant in contempt, imposing a fine and directing defendant’s commitment if default should he made in payment as therein provided. On this appeal we are required to determine whether jurisdiction remained in the court to make the order appealed from, after the entry of final judgment dismissing the complaint. If the motion to punish had been made after final judgment there would he no question as to the court’s lack of authority. A proceeding to punish a party to an action for a civil contempt, commenced by an order to show cause, is a proceeding in the action and not an independent special proceeding. (Pitt v. Davison, 37 N. Y. 235, 240; Jewelers’ Mercantile Agency v. Rothschild, 155 N. Y. 255; Matter of Steinman v. Conlon, 208 N. Y. 198.) The order to show cause is equivalent to a notice of motion, and the subsequent proceedings thereon are taken [231] in the action, as on a motion made therein. (Judiciary Law, § 761; Turner v. Woolworth, 221 N. Y. 425, 429.) The court would have had no power, therefore, to entertain the motion after judgment (Hayes v. Hayes, 150 App. Div. 842, affd. 208 N. Y. 600; Matter of Thrall, 12 App. Div. 235, affd. 153 N. Y. 644), nor would the court, ordinarily, have any power after judgment to make an order affecting a substantial right of a party, except to carry the judgment into effect, to set aside or correct the judgment, or in cases where special authority is given by statute. (Matter of Ungrich, 201 N. Y. 415.) Here, however, it is undisputed that the motion to punish was made and that the proof was fully submitted thereon prior to the entry of judgment. On December 7, 1951, it was competent for the Official Referee to render his decision immediately. Apparently he did not do so because he wished to give adequate consideration to the questions of law which were presented. When he subsequently decided the motion in plaintiff’s favor he could have done so .nunc pro tunc, as of the date when the proof was submitted, and no doubt would have done so if plaintiff had so requested. Under the circumstances, the order appealed from should be given effect as of the time when the proof on the motion was submitted. The delay of the court in announcing its decision on a motion should not be allowed to operate to the prejudice of the party in whose favor the decision is made. (Willson v. Henderson, 15 How. Prac. 90; Crawford v. Wilson, 4 Barb. 504.) The order should be modified so as to provide that it is made, nunc pro tunc, as of December 7, 1951, and as so modified the order should be affirmed, with $10 costs and disbursements to respondent.