Boucicault v. Boucicault

Barrett, J. — The order of arrest was not irregular in prescribing the form of undertaking; that direction might have been stricken out or disregarded as surplusage. But as the order in that respect strictly follows subdivision 1 of section 575 of the Code of Civil Procedure the defendant was not prejudiced. If the direction had been omitted, the sheriff would have been required by law to take an undertaking in precisely the same form. It was quite proper to furnish the officer with this specific guidance, rather than require him to gather the proper form from the papers. The defendant’s [133] right to the jail liberties under section 149 was not in the least affected by the direction in question. If defendant did not desire to give the bail required by the order to effect his discharge, he had a perfect right to offer the limit bond under section 149, and the sheriff would have been bound to accept it. ISTor is the point well taken that the order of arrest was granted by Mr. justice Donohue after the adjournment for the day of the special term, at chambers. The objection is not specified in the order to show cause, nor is there any proof that the order of arrest, which purports to have been made by the court, was not in fact so made. For aught that appears, Mr. justice Donohue was holding the special term for the trial of equity causes. Certainly the verity of the order cannot be impugned by loose statements made upon information and belief. But, further, it is provided by section 770 of the Code of Civil Procedure (following subdivision 2 of section 401 of the old Code) that in the first judicial district a motion, which, elsewhere must be made in court, may be made' to a judge out of court, except for a new trial upon the merits. Under section 768, an application for an order is a motion. The present application was, therefore, lawfully made to, and properly granted by, a justice out of court (Disbrow agt. Folger, 5 Abbott's Pr. R., 53; Lowber agt. Mayor, id., 325). There is nothing in the suggestion that the effect of section 770 was merely to authorize judges to grant court orders during the actual session of the court as auxiliaries or aids thereto-The object, undoubtedly, was to provide for the great pressure of ex parte business in this city and the emergencies which are constantly arising. To limit the application of the section to the hours when the chambers special term is actually in session, Would be very largely to nullify the useful purpose sought to be attained. When the court is in session, the justice presiding can generally pass upon all the applications without assistance. It is during the hours of recess or adjournment that the exigencies contemplated and provided for most frequently arise There is no such limitation as that contended for to be found [134] in the letter of the section; clearly none in the spirit or purpose. Under the hroad language used, we think that any application which elsewhere may be made in court may here be made at any time to a judge out of court, hi ext it is cohtended that the case at bar is not one in which an order of arrest could lawfully issue, for the reason that the judgment will not require the performance of an act the neglect or refusal to perform which would be punishable by the court as a contempt, and that, consequently, the case is not brought within subdivision 4 of section 550 of the Code of Civil Procedure. This subdivision, Hr. Troop says, in his notes, was intended as a substitute for the writ of ne exeat. That writ, it was well settled, would issue in such case as the present (Denton agt. Denton, 1 Johnson Chancery, 441; Forrest agt. Forrest, 10 Barb., 46; Bushnell agt. Bushnell, 15 Barb., 399). The question, therefore, is, whether the codifier has frustrated his own intention. We think not. The court may ultimately, in this action, render a judgment requiring the defendant to perform an act the neglect or refusal to perform which would be punishable as a contempt. At all events it cannot, with certainty, be asserted that the judgment will not, and that lawfully, require the performance of such an act. The defendant may be enjoined from interfering with the plaintiff’s custody and control of the children, or, under other circumstances, he may be required to transfer and deliver them into her custody and control. He may also be required to give reasonable security for the maintenance of his children and for any allowances awarded to his wife (3 R. S., Banks’ ed., 159, sec. 74). It is true that, in default, his personal property and the rents and profits of his real estate may be sequestrated; but that provision of the statute is partially additional to, and does not exclude, the ordinary remedy by attachment. If, then, the defendant, having the ability, is required by the final judgment to furnish reasonable security and neglects or refuses to perform the act of giving it, he may b.e punished by the court as for a contempt. . The [135] requirement would be “ a lawful mandate,” and the neglect or refusal to comply would be “ disobedience thereto.” The case would thus be brought within section 14, subdivision 3 of the Code of Civil Procedure. The case of Park agt. Park, decided by the court of appeals on the 24th of February, 1880, seems to be directly in point, and fully supports the views above expressed. It even goes further, and substantially overrules Lansing agt. Lansing (4 Lansing, 377).' “ The position,” said Mr. justice Miller, “ that payment of the costs and alimony cannot be enforced by proceedings for contempt is sufficiently answered in the opinion of the general term, with which we concur, and does not require discussion.” The opinion of the general term was delivered by Learned, P. J., and Lansing agt. Lansing was there distinctly referred to and criticised. Finally, the plaintiff makes a sufficient ease for the order. She shows that the defendant is about to depart from the state, with no present intention of returning, except, possibly, to pass through it, and that he is to sail for Europe within a month, to be gone indefinitely. Although the defendant moved to vacate upon an affidavit of his own, he made no denial of. these charges. They would have been sufficient to justify a ne exeat (Cases before cited and 18 Ves., 353). Coupled with the plaintiff’s undenied averment, they certainly make out a prima facie case of danger that by reason of such departure the judgment requiring performance of some of the acts suggested will be rendered ineffectual. The order appealed from should, therefore, be affirmed, with ten dollars costs and the disbursements of the appeal. Davis, P. J., and Daniels, J., concurred.