
    Amelia F. Wood, Respondent, v. Frank S. Wood, Appellant.
    
      Powers of the Supreme Court—divorce, and separation require statutory authority — annulment of marriage is inherent — allowance for the support of the plaintiff’s stepson —power to award Ms custody to Ms grandfather — how invoiced — visits to him by his father, not a waiver of the right to appeal.
    
    The court has no inherent power to grant divorces or bills of separation and can exercise only such authority on the subject as is conferred by the Legislature. It is otherwise in actions to annul a marriage, for in these cases the court has inherent jurisdiction.
    An award of alimony pendente Hie to a woman suing for an absolute divorce should not embrace an allowance for the support and maintenance of her stepson, the defendant’s child by a former marriage; nor has the court,, upon the motion for temporary alimony and counsel fees, any authority to award the custody of the child to his grandfather, who is not a party to the proceeding, especially where the moving papers do not apprise the defendant of the intention to apply for such an order.
    
      The fact that the defendant visited his child at the times permitted in the order does not deprive him of the right to appeal therefrom, as he had an absolute right to visit his child without the permission of the court.,
    
      S&mble,. that the power of the court to take infants from the custody of their parents and deliver them to a stranger must be invoked by petition or by an application for a writ of habeas corpus and upon notice.
    Appeal by the defendant, Frank S. Wood, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 13th day of February, 1901, denying the defendant’s motion for an order of reference, and granting the plaintiff’s motion for temporary alimony and counsel fees, and awarding the custody of the defendant’s child by a former marriage to its grandfather.
    
      George M. Williams, for the appellant.
    
      Milton E. Gibbs, for the respondent.
   Laughlin, J.:

This is an action for a divorce. Plaintiff in her complaint prayed for the custody of her stepson, Franklin M. Wood, now seven years old, the child of defendant by a former marriage. It appears that at the time the parties separated, plaintiff excluded defendant from his house and retained the child. Defendant subsequently applied to the Supreme Court for a writ of habeas corpus to regain possession of his son. The writ was made returnable on the 16th day of February, 1901. In the meantime plaintiff made a motion for counsel fees and alimony with the general prayer for further relief. This motion was returnable on the 9th day of February, 1901, at which time it was heard and decided. The order entered upon the decision of such motion required defendant to pay to plaintiff or her counsel fifty dollars counsel fees, and that he pay plaintiff during the pendency of this action ten dollars per week from the 1st day of February, 1901, “ for her support and that of the child Franklin M. Wood,” and the order further directed that said child should remain in the custody of Charles C. Myer, his grandfather, with the privilege to defendant of seeing his son at a certain hour each Sunday afternoon until the further order of the court. Pending the habeas corpus proceeding plaintiff had delivered the custody of the child to said Myer. Upon the motion defendant requested the court to grant an order of reference on the question as to whether he had made suitable provision for the support and maintenance of plaintiff during the pendency of the action and as to whether she had sufficient means to carry on the litigation. The order also denied such requests. The allegations, in the complaint charging acts of infidelity on the part of the defendant are all upon information and belief, and they are denied by the answer. In her moving papers plaintiff presents no competent proof in support of these charges against her husband. Her own affidavit contains many general charges and a few specific charges, all, however, made upon information and belief, and neither the sources of her information nor the grounds of her belief are stated. Her evidence would not be competent to prove the adultery. Other affidavits presented by her contained some damaging charges in general language in the nature of conclusions of law rather than statements of fact. All of these charges are denied by defendant and by one 'of the co-respondents. It is very doubtful whether the plaintiff presents a prima facie case warranting the conclusion that there is any probability or reasonable ground for believing that she will be able to offer any competent evidence in support of the charges or to succeed in the action, so as to authorize the court to award alimony and counsel fees pendente lite. (Downing v. Downing, 23 App. Div. 559; Nelson Div. & Sep. § 854; Jones v. Jones, 2 Barb. Ch. 146; Moriarty v. Moriarty, 58 N. Y. Super. Ct. 279; Bissell v. Bissell, 1 Barb. 430; Monk v. Monk, 7 Robt. 153 ; Osgood v. Osgood, 2 Paige, 621; Lewis v. Lewis, 3 Johns. Ch. 519; Kennedy v. Kennedy, 73 N. Y. 369 ; Brinkley v. Brinkley, 50 id. 184; Collins v. Collins, 71 id. 269, 276 ; Kock v. Kock, 42 Barb. 515). But as the award óf alimony embraces an allowance for the support and maintenance of the child it cannot stand. Plaintiff is under no obligation to support her stepchild nor is she entitled to his custody. (Matter of Ackerman, 116 N. Y. 654; Bartley v. Richtmyer, 4 id. 38; Williams v. Hutchinson, 3 id. 312.) The court has no inherent power to grant divorces or bills of separation and can exercise only such authority on that subject as is conferred by the Legislature. (Davis v. Davis, 75 N. Y. 221, 227; Erkenbrach v. Erkenbrach, 96 id. 463 ; Peug net v. Phelps, 48 Barb. 567.) It is- otherwise in actions to annul a marriage, for in those cases the court has inherent jurisdiction. (Griffin v. Griffin, 47 N. Y. 134; Higgins v. Sharp, 164 id. 4.) The statutory authority conferred upon the court in actions for divorce or separation to require the husband to provide for the support of his children before final judgment is limited to the issue of the marriage (Code Civ. Proc. § 1769), and the authority of the court conferred by statute to provide by order or judgment for the custody and future support of children in such action is likewise limited. (Code Civ. Proc. § 1771.)

We are also of opinion that the court was not authorized to award the custody of the child to his grandfather, who was not a party to the proceeding. The moving papers did not apprise defendant of the application for such an order, and it does not appear that he consented to the order or otherwise waived any right in the premises. The Supreme Court, under its general chancery jurisdiction over infants, may, in a proper case, take them from their parents and deliver them to an institution or to a stranger, and may, when the interest of the children requires this to be done, restore them to either or both of the parents, but this power must be invoked by petition or by an application for a writ of habeas corpus and upon notice. (People ex rel. Keator v. Moss, 6 App. Div. 414; Matter of Knowack, 158 N. Y. 482; Davis v. Davis, 75 id. 221; People ex rel. Pruyne v. Walts, 122 id. 238; Matter of Welch, 74, id. 299 ; Wilcox v. Wilcox, 14 id. 575; People ex rel. Johnson v. Erbert, 17 Abb. Pr. 395.)

Plaintiff’s motion to dismiss the appeal upon the ground that defendant accepted the benefits of the order, in that he visited his child at the times permitted thereunder, is without merit. He had the absolute right to visit his child without the permission of the court. .

These views lead to the conclusion that the order appealed from should be reversed, without prejudice to plaintiff’s rights to renew the application for counsel fees and alimony.

All concurred.

Order reversed, without prejudice to plaintiff’s right to renew application for counsel fee and alimony.  