
    Julia A. Percival, App’lt and Resp’t, v. Edward S. Percival, App’lt and Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 22, 1891.)
    
    "Divobcb—Alimony.
    The general term has power to review the discretion exercised hy the special term in allowing a certain amount to the wife, in an action hy her for divorce, “for repayment of sums expended hy her in her support and maintenance since the commencement ” of the action, and strike out the allowance as improridenily allowed under all the circumstances, but it has no right to do so upon the ground that the lower court had no power to allow it.
    Cross appeals from a judgment of the general term of the supreme court in the first judicial department, modifying and affirming as modified a judgment entered upon the decision of the court at special term and also affirming certain orders of the •special term.
    
      Raphael J. Moses, for pl’ff; William J. Lynch, for def’t.
    
      
       Affirming 14 N. Y. State Rep., 255.
    
   Per Curiam.

The case of Beadleston v. Beadleston, 103 N. Y., 402; 3 N. Y. State Rep., 634, upon which the general term seems to have relied in deducting $300 from the judgment of the special term, has no application to this appeal, because the subject there under review was an order made pendente lite, but after the referee had made his report which convicted the wife of adultery, although no judgment had been entered.

This court held that the power of the special term, under those •circumstances, was confined to such allowances as were necessary to enable the wife to “ carry on or defend the action,” and that there could be no necessity for an allowance to make a defense that had already been made. In this case the special term as a part of its final judgment of separation from bed and board in favor of the wife, awarded her $300 “ for repayment of the sums expended by her in her support and maintenance since the commencement of” the action. It was the duty of the defendant to support his wife and as he failed to discharge that duty after suit was instituted against him, she was compelled to procure and expend money for that purpose. Upon the termination of the action the court in rendering judgment for the plaintiff, had the power. to give “such directions as the nature and circumstances of the case” required. The general term had power to review the discretion exercised by the special term and to strike out the $300 as improvidently allowed under all the circumstances, but it had no right to do so upon the ground that the lower court had no power to allow it. Tilton v. Beecher, 59 N. Y., 176. In the case cited the order stated that it was made “ on the ground that the court had no power to grant the same ” and as we understand the rule, unless it appears in the record, of which the opinion forms no part, that the action of the court was based upon a want of power, we cannot review it. Titus r. Orvis, 16 N. Y., 617, 618; Tohnan v. S., B., & N. Y. R. R. Co., 92 id., 353, 356.

“ It is a fundamental rule governing the review by one tribunal of the proceedings of another that orders or decisions resting in discretion are not review able.” Wavel v. Wiles, 24 N.Y., 635, 636.

The order of the general term may have been made, so far as the record discloses, in the exercise of a conceded discretion, and, if not, it was the duty of. the appellant to procure it to be so settled as to show that it was not.

We think that the judgment and all of the orders should be affirmed, without costs in this court to either party.

All concur.  