
    Carmela Meo, Pl’ff, v. Francisco Meo, Def’t.
    
      (Supreme Court, Special Term, New York County,
    
    
      Filed October 11, 1888.)
    
    Marriage and divorce—Alimony—Power oe the court to grant.
    In an action brought by the wife against the husband to annul the marriage on the ground of fraud, the court has no power to grant alimony or counsel fees.
    
      
      McKinley & A., for pl’ff; Thornall, Squires & Constant, for def’t.
   O’Brien, J

This is an application for alimony and counsel fees pendete lite, in an action brought by the wife against the husband, and to annul the marriage on the ground of fraud.

The defendant resists the motion on the ground of want of power and jurisdiction in the court to grant any alimony or counsel fee in an action of this nature.

The plaintiff contends that, whether express power is granted or not by the Code, the right to give the relief in cases of this character rests upon the incidental powers formerly vested in the court of chancery, to which the supreme court has succeeded, and that an allowance does not depend wholly upon the Codo of Civil Procedure, but upon the practice of the courts as it previously existed.

It remains, therefore, to determine whether alimony and counsel fees can be allowed undér the Code by any provision of the Revised Statutes or bv the practice of the courts.

First, as to the Code. It would seem that the provisions of the Code for alimony and counsel fees are limited to actions for divorce and separation.

Section 1769 of the Code provides: “That where an action is brought as prescribed in either of the last two articles the court may, in its discretion, during the pendency thereof * * * make or modify an order * * * requiring the husband to pay any sum * * * necessary to enable the wife to carry on or defend the action,” etc.

The last two articles referred to relate to—

(a.) Actions for divorce;

(b.) Actions for separation;

And therefore it would seem that article 1, which includes “actions to annul marriage,” is not included within the provision of the section, and no provision whatever is made by the Code for alimony and counsel fee.

Second, as to the Revised Statutes. A distinction is seemingly made between actions made by the wife and those brought against the wife to set aside a marriage contract. North v. North, 1 Barb. Ch., 243; and in the case of Griffin v. Griffin ( 47 N. Y., 134) the learned judge in delivering the opinion of the court says:

“It is very properly restricted to cases where the wife denies the existence of a valid marriage and seeks a divorce or separation for subsequent misconduct of the husband; where she denies the existence of the marriage she.cannot consistently claim that the defendant was under obligations to provide any means to carry on a suit against him.”

As to the third, the practice of the courts, it would seemingly be against the granting of such allowance. Bloodgood v. Bloodgood, 59 How. Pr., 42; Isaacsohn v. Isaacsohn, 3 Mon. Law Bul., 73.

It is true that the case of Allen v. Allen, decided at special term of this court, is authority for plaintiff’s contention, and it would seemingly appear by the statement of the learned judge in the Matter of Anonymous (15 Abb. Pr., 308), wherein the judge says:

“That the court is authorized in every suit brought for divorce or separation, to require the husband to pay a suitable sum to enable the wife to carry on the suit. Ho distinction is made between a suit for divorce upon the ground of nullity of the marriage or for any other - cause; all are denominated divorces or separations.”

The Code, however, makes the distinction between cases for divorce and separation and cases brought to nullify the marriage, and in view of the expression quoted from the case of Griffin v. Griffin, and the fact that the Revised Statutes do not provide for such allowances in such actions, and that as to the practice of the court, the weight of authorities is seemingly against fhe granting of such relief, I am reluctantly obliged to deny the motion.

Had I concluded that the court had the power regarding the present case as a proper one upon the facts disclosed, I would have granted the motion for alimony and counsel fee.

Ho costs.  