Noland v. Noland , 36 N.Y. Sup. Ct. 630 ( 1883 )

Barnard, P. J.:

Section 1241 of the Code does not provide for this case. Section 1240 defines the cases where the enforcement of a judgment may be by execution. Section "1241 enacts that a judgment may be enforced by attachment when the judgment requires “ the payment of money into court or to an officer of the court.” The judgment in this case is final 'and it directs the payment of the Oosts to the attorney. The attorney is an officer of the court, and therefore an attachment is asked. The judgment is informal. It should have given costs to the party. The attorney represents, the party but he has no individual standing in the judgment. The rule sought to be applied in this case would authorize an attachment for costs in all judgments. The section is, it seems to me, designed to cover' those cases where the judgment requires a deposit or payment of money other than costs given by a final judgment to the party or to his attorney, even if this is not the true construction, the order should be affirmed. The plaintiff has issued an execution and has failed to collect the same. The right to an attachment in any ease under this section 1241, is not imperative but discretionary. (Cochrane’s Exr., v. Ingersoll, 73 N. Y., 613.) "We have repeatedly held that an attachment would not be granted to collect costs or alimony in divorce cases when the party is unable to comply with the demand. Imprisonment and consequent disgrace should not be put upon a person who is too poor to pay.

Order affirmed, with costs and disbursements.

Hykman and Pratt, JJ., concurred.

Order refusing to commit defendant for contempt affirmed, with costs and disbursements.