CLEMENT, Ch. J.
This is an appeal from an order finding the defendant guilty of contempt in failing to pay alimony. The appellant admitted that he owed the amount, eighty dollars, but claimed that he was out of work and had no means.
Assuming, as claimed by counsel for the appellant, that a husband should not be committed to jail for contempt for nonpayment of alimony when he is unable to pay, the burden was on the appellant to establish his poverty, and to show that he could not earn money enough to support his wife and two children of the ages of eight and ten years. His wife has been compelled to earn her living by washing and scrubbing, and the husband has paid her nothing since June 23, 1893.
The judge at Special Term was not satisfied by the affidavits of the defendant and his mother that he could not pay the amount due, and his conclusion seems to us the correct one, after carefully reading the record.
The order should be affirmed, with ten dollars costs and disbursements to be taxed by the clerk.
VAN WYCK, J., concurs.
Order affirmed, with costs.