Cahzin v. Cahzin ( 1908 )

GIEGERICH, J.

There is a sharp and irreconcilable conflict in the affidavits submitted as to the means and health of the defendant, as well as his ability to work. If the allegations contained in the husband’s opposing affidavit are to be believed, he is, at most, even when steadily employed at his trade as a barber, only able to pay one-half of the sum directed to be paid to the plaintiff weekly for h^r support and maintenance during the pendency of this action. Inability to pay, however, has been held not to be an excuse for failing to comply with an order directing the payment of alimony. Strobridge v. Strobridge, 21 Hun, 288; Ryckman v. Ryckman, 34 Hun, 238; Delanoy v. Delanoy, 19 App. Div. 295, 46 N. Y. Supp. 106; Young v. Young, 35 Misc. Rep. 335, 71 N. Y. Supp. 944. As was said by Mr. Justice Gildersleeve in the case last cited, at page 337 of 35 Misc. Rep., and page 946 of 71 N. Y. Supp.:

“This application cannot be answered by affidavits showing that defendant is unable to make the payments. To procure relief upon that ground he can move to be released from imprisonment. Ryckman v. Ryckman, 34 Hun, 235. He cannot show, in opposition to this motion to punish for contempt, that his pecuniary circumstances are such as to render him unable to pay the moneys required to be paid. Strobridge v. Strobridge, 21 Hun, 288.”

Applying the rule laid down in these cases, I have no alternative but to grant this application.

Motion granted. Settle order on notice.