
    BORCKMAN’S APPEAL.
    The Court may after a discontinuance order the plaintiff to pay counsel fees and alimony for the time the cause was pending.
    An order for alimony made after a discontinuance, is not interlocutory, but. final.
    Appeal from Common Pleas of McKean County. No. 433 January Term, 1885.
    Robert F. Borckman had instituted an action for divorce against Elizabeth B. Borckman to No. 30$ May Term, 1884, on the ground of adultery. On June 4, 1884, a rule was granted upon petition and affidavit of respondent denying the allegations in the libel, to show cause why libellant should not pay counsel fees and alimony, pendente lite. On February 4,1885, plaintiff moved to discontinue the case, which motion was filed of record by order of the Court, who on February 23, 1884, filed the following order and opinion:
    Per Curiam.
    This rule was reached upon the argument list and taken up for consideration, whereupon counsel for libellant asked leave to discontinue his application for divorce in this case.
    We fully recognize the right of the libellant to withdraw his action, but do not think he can thereby defeat the right of the respondent to compel him to pay expenses of counsel actually incurred in the case up to the time of the withdrawal of his suit, nor can he by so doing defeat or affect the rights (whatever they may be) of the respondent for an order for support from the commencement of the proceeding to the time of the'discontinuance of the case. We do not think the respondent has a proper or legal claim here for expenses of any kind incurred in th e equity suit between the parties, but wo think she is entitled to an order for the payment of counsel fees and for maintenance during the pendency of this action.
    And now, to wit, February 23,1885, on hearing the parties on the rule to show cause, etc., heretofore granted in this case, and on full consideration thereof, the Court orders Robert F. Borckman, the libellant, to pay to Eliza B. Borckman, the respondent, or to Messrs. Sterrett & Rose, her attorneys, the sum of one hundred and fifty dollars for counsel fees in defending this case from the time of its commencement to the argument of this rule inclusive, and it is further ordered that the said Robert F. Borckman pay to the said Eliza B. Borckman, or to Messrs. Sterrett & Rose, her attorneys, the sum of $75.00 per month for the maintenance of herself tod three children from the commencement of this suit, to wit, the 21st day of April, A. D. 1884, to this 4th day of February, A. D. 1885, to wit, the sum of seven hundred and twelve dollars and fifty cents.
    This order not to prejudice the right of the said Eliza B. Borckman to ask for an order for counsel fees and necessary •expenses in No. 88, February Term, 1884.
    Borckman then appealed complaining of the foregoing order.
    
      Messrs. R. Brown, W. F. Elliott, R. B. Stone and A. L. Weil, Esqs. for plaintiff
    in error argued that alimony was given for a
    ■subsistence to the wife, and as she has subsisted on money received from her husband, no alimony should be allowed; and cited Melizet vs. Melizet, 1 Parsons 78; Graves vs. Cole, 19 Pa. 171; Breinig vs. Breinig, 26 Pa. 161; Hitnur’s Appeal, 54 Pa. 110; Hutton vs. Hutton, 3 Pa. 100.
    
      Messrs. Rose & Sterrett and M. A. K. Weidner, Esqs., contra,
    
    :argued that the Court has jurisdiction to grant an allowance for alimony and counsel fees; Graves vs. Cole, 19 Pa. 171; Grove’s Appeal, 68 Pa. 143; Breinig vs. Breinig, 26 Pa. 161; Mann vs. Mann, 7 W. N. C. 507. This power is within the discretion of the Court, and is not reviewable; Waldron vs. Waldron, 55 Pa. 231; Pringle vs. Pringle, 59 Pa. 281; Commonwealth vs. Bartilson, 85 Pa. 482; Gamble vs. Woods, 53 Pa. 158; Bower’s Appeal, 84 Penna. 311. The order complained of is interlocutory .and an appeal does not lie; Gelsinger’s Appeal, ante 196; O’Hara vs. Penna. R. R. Co.; 2 Grant, 241; Klein’s Appeal, 11 W. N. C. 449.
   The Supreme Court affirmed the decree of the Common Pleas on May 25, 1885, in the following opinion :

Per Curiam.

Although the discontinuance of the case might have been more clearly entered of record, yet inasmuch as the motion for "leave to discontinue was filed by leave of the Court, and was afterwards unmistakably recognized and held by tbe Court to be a discontinuance, we must refuse to quash on the alleged ground that the subsequent order was interlocutory only. It was final. No formal answer had been filed whereby the cause was put at issue. It'might therefore by leave of the Court he discontinued. In fact no objection appears to have been made thereto. The petition on which the rule for allowance was granted denied the only fact for which the divorce was asked. The rule was granted while the cause was pending. The Court had an undoubted right to order the allowance. The appellant •could not defeat 'that right thus attached, by afterwards asking to discontinue the case. The Court might still make the order covering the time until it was discontinued. That is just what it did.

Decree affirmed and appeal dismissed at the cost of the appelant.  