future payments, as directed by final decree, it is objected that he has heretofore been imprisoned for three months as the result of proceedings to enforce an interlocutory order for the payment of alimony in the action, and an exemption is claimed under section 111 of the Code of Civil Procedure. Under the authorities, the inhibition of the statute, with regard to the suecessive terms of imprisonment, does not apply where the earlier commitment was founded upon mesne process, and a second commitment is ordered under final judgment in the same action. Levy v. Salomon, 12 Civ. Pro. 125; 8 St. Rep. 16; 19 Abb. N. C. 52; 26 Wkly. Dig. 460; 105 N. Y. 529; 12 N. E. 53; Warshauer v. Webb, 10 Civ. Pro. 169. The case of Winton v. Winton,

DURATION OF IMPRISONMENT IN CIVIL ACTION,-continued.

It was also applied by the same judge who made the decision at special term in Levy v. Salomon, before the reversal of that decision by the court of appeals, to the case of a defendant who had been arrested on an order of arrest and given bail under § 575, Subd. 3 of the Code of Civil Procedure to the effect that he would at all times render himself amenable to any mandate which might be issued to enforce final judgment recovered against him in the action, and it was held that after being at large on such bail for six months he was not entitled to a discharge under § 111 of the Code of Civil Proced

ure.

Wright v. Grant, 5 St. Rep. 324; 18 Abb. N. C. 451; 11 Civ. Pro. 407.

The imprisonment meant in § 111 of the Code of Civil Procedure is an actual imprisonment within the walls of a jail, and not the technical restraint under which a person may be supposed to be, who is committed to the custody of his counsel and permitted to go at large.

People v. Grant, 111 N. Y. 584; 20 St. Rep. 77.

In the case last cited the relator had been committed to jail for non-pay. ment of alimony but had been, in a previous habeas corpus proceeding, committed to the custody of his counsel for nearly the whole period of the alleged imprisonment of six months by virtue of which he sought to be discharged from further confinement.

The constructive imprisonment within the liberties of the jail terminates by operation of law, under § 111 of the Code of Civil Proceedure, upon the expiration of six months from the time it begins.

Sandman v. Seaman, 84 Hun, 337; 65 St. Rep. 602; 32 Supp. 338.

A defendant is not entitled to discharge from custody under a second body execution, by reason of his having been taken from the custody of the sheriff under the first body execution by virtue of a criminal warrant and having remained in confinement pending bail on the criminal charge the full limit of imprisonment allowable on the body execution, i. e. six months. Eads v. Wynne, 79 Hun, 463; 61 St. Rep. 250; 29 Sup. 983.

53 Hun, 4; 16 Civ. Pro. 337; 24 St. Rep. 656; 5 Supp. 537, affirmed in 117 N. Y. 623; 22 N. E.379, cited for the respondent, involved the question only of the right to a second commitment under the same judgment, and therefore does not suggest a different rule.

No opposition being presented upon the merits, the motion is granted.

Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PAT TERSON, O'BRIEN, and INGRAHAM, JJ.

George W. Dease, for appellant.

Ilouse, Grossman & Vorhaus, for respondent.

O'BRIEN, J. The action was brought for a separation, on the grounds of cruelty and abandonment; and the final decree directed the defendant to pay the sum of $75 per month for the maintenance of the plaintiff and of the children of the marriage, and to give security in the form of a bond or undertaking in the sum of $1,000. The defendant, although served with the final decree and a personal demand to comply with its terms, wilfully refused to do so; and the court before whom the facts were brought made the order adjudging the defendant in contempt, from which this appeal is taken. In opposition to the motion below, the defendant showed that while the action was pending, and before the final decree, an order was obtained by the plaintiff for the payment by the defendant of alimony pendente lite, and that, having failed to comply with the terms of that order, he was adjudged in contempt, arrested by the sheriff, and remained in prison the full three months, which is the extent allowed by law. The insistence below, as in this court, is that, having been once arrested in the action, a second arrest is expressly prohibited by section 111 of the Code of Civil Procedure, which reads as follows:

"No person shall be imprisoned within the prison walls of any jail for a longer period than three months under an execution or any other mandate against the person to enforce the recovery of a sum of money less than five hundred dollars in amount or under a commitment upon a fine for contempt of court in the nonpayment of alimony or councel fees in a divorce case where the amount so to be paid is less than the sum of five hundred dollars;

and where the amount in either of said cases is five hundred dollars or over, such imprisoninent shall uot continue for a longer period than six months. It shall be the duty of the sheriff, in whose custody any such person is held, to discharge such person at the expiration of said respective periods without any formal application being made therefor. No person shall be imprisoned within the jail liberties of any jail for a longer period than six months upon any execution or other mandate against the person, and no action shall be commenced against the sheriff upon a bond given for the jail liberties by such person to secure the benefits of such liberties, as provided in articles fourth and fifth of this title for an escape made after the expiration of six months' imprisonment as aforesaid. Notwithstanding such a discharge in either of the above cases, the judgment creditor in the execu tion, or the person at whose instance the said mandate was issued, has the same remedy against the property of the person imprisoned which he had before such execution or mandate was issued; but the prisoner shall not be again imprisoned upon a like process issued in the same action or arrested in any action upon any judgment under which the same may have been granted. Except in a case hereinbefore specified nothing in this section shall effect a commitment for contempt of court."

The appellant claims that, having once been arrested and imprisoned, though upon an interlocutory order before judgment, the court by this section, is prohibited from imprisoning him a second time, even upon his refusal to obey a final judgment; the argument being that the second arrest is upon the same ground, in the same action, and upon a like process. This precise question has not been passed upon by any appellate court, although other questions arising under the provisions of this same section have been decided. Thus, in the case of Levy v. Salomon, reported in 12 Civ. Pro. R. 125, and in 105 N. Y. 529; 12 N. E. 53, an order of arrest was obtained at the beginning of the action; and the defendant, having given a bond for the jail limits and having remained therein during six months, moved for a discharge from the limits and from arrest. The motion was granted, and the order thereupon entered was subsequently affirmed by the general term; but on appeal to the court of appeals the decision of the lower courts was reversed, and it was said, as stated by the syllabus in the case in 105 N. Y. 529; 12 N. E. 53, that:

"The provision of the Code of Civil Procedure (section 111,

as amended by chapter 672, Laws 1886) limiting the time of imprisonment upon any execution or other mandate against the person, refers only to a final process or mandate after a judgment fixing the amount due; it does not include orders of arrest issued at the time of the commencement of the action or before any recovery."

And in Winton v. Winton, 53 Hun, 4; 5 Supp. 537, it was held that where a defendant has been arrested and imprisoned for the nonpayment of alimony previously directed to be paid by the judgment in an action for divorce, and remains in prison under the commitment because of such default of payment for the full term for which he could be imprisoned under section 111 of the Code of Civil Procedure, he is not thereafter liable to arrest and imprisonment for failure to pay alimony subsequently accruing. The ground of that decision was that the second arrest, like the first, being after and under the judgment, would necessarily be upon a like process issued in the same action, which is prohibited by the Code. This latter case in no way militates against the conclusion reached at special term, but furnishes, rather, an argument in favor of the view that the construction to be given to the words "process" and "mandate," as used in section 111, is that they refer to process after final judgment. This view is strengthened by the section itself, which, in limiting the duration of imprisonment, speaks of imprisonment "under an execution or other mandate enforce the recovery of a sum of money," and subsequently refers to the fact that, notwithstanding a discharge under the law, "the judgment creditor in the execution, or the person at whose instance the said mandate was issued," has a remedy against the property; and continues, "but the prisoner shall not be again imprisoned upon a like process issued in the same action or arrested in any action upon any judgment under which the same may have been granted." We have not overlooked the fact that there is a provision that the duration of imprisonment is equally limited to a commitment "upon a fine for contempt of court in the nonpayment of alimony or counsel fees in a divorce case," nor the concluding words, that "nothing in this section shall

to

effect a commitment for contempt of court." In construing that part of the section which relates to imprisonment for contempt in failing to pay alimony, upon the principle of "noscitur a sociis," it must be held to mean imprisonment after judgment, or upon a final process or mandate, which is the kind of process which the balance of the section expressly refers to. Reading the section as a whole, its evident purpose was to prevent a person, after judgment or final mandate, being twice imprisoned in the same action upon a like process; and there is nothing which indicates that it was intended to apply to an interlocutory order for contempt before judgment, or to an order of arrest obtained at the beginning of an action, or to any mesne process upon which a person might be arrested before judgment.

Our conclusion is that the court at special term was right in its construction of the section, that:

"The inhibition of the statute with regard to the successive terms of imprisonment does not apply where the earlier commitment was founded upon mesne process, and a second commitment is ordered under final judgment in the same action."

Order accordingly affirmed, with $10 costs and disbursements. All concur.