
    FREEMAN v. FREEMAN.
    
      N. Y. Supreme Court, First Department, First District; Special Term and Chambers,
    
    
      September, 1880.
    Alimony.
    Upon dismissal of complaint on a husband’s action for divorce on the ground of adultery, the court may allow alimony and counsel fee.
    
    The court ordering or adjudging such payment may enforce obedience by process for contempt.
    
    
      Habeas corpus.
    
    Stewart W. Freeman brought an action in the New York superior court, against his wife Hannah, for a divorce ; and she made default. The default was opened on her application, and leave to defend granted on condition that she stipulate not to ask for alimony and counsel íes pendente lite.
    
    She answered, and the action wás tried before a referee, who found in her favor. Her counsel then moved before judgment for an order granting alimony. It was granted, to be computed from the date of opening the default, and a further sum was allowed for expenses of the action. Judgment dismissing the complaint was afterward entered. Subsequently, thé allowance not having been paid, defendant took an order to show cause against plaintiff, on the return of which, after a hearing, an order of commitment for contempt in not paying was granted by Sedgwick, J., and the plaintiff having been arrested thereon and committed, the present writ of habeas corpus was issued to bring him before one of the justices of .the supreme court.
    
      A. & L. Levy, for the petitioner.
    
      A. J. Perry, in opposition.
    
      
       The provisions of the Code of Civil Procedure, which took effect since the judgment in this case, do not alter the rule. Section 1,769.
    
    
      
       See Allen v. Allen, p. 175 of this volume, and note.
    
    
      
       The statutory power to grant an order requiring payment -of an allowance for the expenses of the action, is expressed only to extend “ during the pendency of the action.” Code Civ. Pro. § 1,769. As to whether this includes proceedings after judgment, see Griffin v. Griffin, 47 N. Y. 134; Wood v. Wood, 7 Lans. 204; Kamp v. Kamp, 59 N. Y. 212, rev’g 37 Super. Ct. (J. & S.) 241; Fellows v. Heermans, 13 Abb. Pr. N. S. 1; reiterated in Spears v. Mathews, 66 N. Y. 127. rev’g 6 Hun, 489.
    
   Lawrence, J.

The superior court had jurisdiction of the person of the petitioner, and of the subject-matter. The order making an allowance to the wife for • alimony and counsel fee, upon the dismissal of the complaint, was also in accordance with the established practice of the late court of chancery (Germond v. Germond, 1 Paige Ch. 83). .And the superior court also had power to punish the petitioner for his contempt in refusing to obey its order.

The application to discharge the petitioner must, therefore, be denied, and he must be remanded.  