Opinion
April 18, 1983
In a matrimonial action, plaintiff appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated September 30, 1982, which, inter alia, (1) directed her to deposit the sum of $5,159 into certain accounts with Merrill Lynch, Pierce, Fenner Smith, on or before August 7, 1982, (2) stated that if she failed to so deposit said sum she would be adjudged in contempt and would be fined $5,159, and (3) allowed her to purge herself of contempt by depositing $5,159 into said accounts within 10 days after service of said order upon her attorney. Order modified, on the law, by deleting the second, third, fourth and fifth decretal paragraphs. As so modified, order affirmed, without costs or disbursements. Plaintiff's time to comply with the direction in the first decretal paragraph is extended until 10 days after service upon her of a copy of the order to be made hereon, with notice of entry. Section 756 Jud. of the Judiciary Law mandates that an application to punish for civil contempt be commenced "by notice of motion returnable before the court or judge authorized to punish for the offense, or by an order of such court or judge requiring the accused to show cause * * * why the accused should not be punished for the alleged offense". Absent the requisite notice and warning set forth by that statute, Special Term was without jurisdiction to punish for contempt ( Barreca v Barreca, 77 A.D.2d 793). Moreover, an order requiring the performance of an act may not include an additional clause stating that in default thereof, the party will be guilty of contempt of court (see Bradbury v Bliss, 23 App. Div. 606). Accordingly, the order is modified by deleting the decretal paragraphs thereof stating that plaintiff would be adjudged in contempt of court if she failed to deposit the funds in question and which made further directions in the event of her failure to comply. Titone, J.P., Lazer, Weinstein and Boyers, JJ., concur.