
    Esther Y. McCarthy, App’lt, v. Eugene McCarthy, Resp’t.
    
      (Court of Appeals,
    
    
      Filed March 21, 1893.)
    
    1. Divorce — Costs—Code Civ. Pro., § 1769.
    After the referee has reported, in favor of plaintiff in an action for divorce, and his report has been confirmed, the court has no power to entertain a motion for counsel fees and an extra allowance of costs in addition to plaintiff’s taxable costs and disbursements.
    3. Same.
    If the judgment of divorce should he appealed from, then if on an application it should appear that in order to maintain and defend her right an allowance ought to be made, the court would he justified in granting one, and it might include previous expenses which it was necessary that plaintiff should pay in order that she might further maintain or prosecute her rights.
    Appeal from an order of the supreme court, general term, fourth department, denying plaintiff's motion for counsel fees and extra allowance of costs in addition to plaintiff’s taxable costs and disbursements.
    
      Louis Marshall, for app’lt; T. K. Fuller, for resp’t.
   Gray, J.

This appeal is from an order of the general term, affirming an order which denied, for want of power in the court, the plaintiff’s motion “ for counsel fees and extra allowance of costs in addition to plaintiff’s taxable costs and disbursements.” The action was by a wife to obtain a divorce from her husband,. and when this motion was made the referee had reported in favor of the plaintiff, and his report had been confirmed. By his report the defendant was required to pay alimony to the plaintiff every year, commencing from the institution of the action. No motion had been previously made for alimony or allowances, and this motion upon the pleadings, evidence and proceedings had was made when the report had been confirmed and before judgment The question is whether under § 1769 of the Code of Civil Procedure such a motion could be entertained. That section provides that the court may “ during the pendency of the action,” from time to time, order “ the husband to ¡Day any sum or sums of money necessary to enable the wife to carry on or defend the action,” etc. In Beadleston v. Beadleston, 103 N. Y., 402; 3 St. Rep., 634, a motion was made by the defendant when the plaintiff moved for judgment on the report, that she have a further allowance to pay her expenses including counsel fees incurred, and it was held that the allowance which had been granted below was unauthorized. This section was there construed to confer the power only during the pendency of the action, and it was said “ the allowance looks to the future. There can be no necessity for an allowance to make a defense which has already been made, or solely to pay expenses already incurred.”

It is difficult to see how that case .is not to be regarded as a precise authority upon the present application. The appellant’s counsel seeks to make a distinction in that Mrs. Beadleston was defendant in that case, and, having been unsuccessful, should not be allowed to compel her husband to pay for her defense, unless it were shown that a payment was necessary to enable her to further carry on the action. This application is based upon the affidavit of one of the plaintiff’s attorneys, and shows that the counsel fees asked for represent what he has “ charged the plaintiff besides the disbursements, etc.” The allowance of such an item, which has reference to the past, within the Beadleston case, is not authorized by the Code. If, as it is hinted in the affidavit, the judgment of divorce should be appealed from, then, upon an application wherefrom that fact should appear, and it should also appear that, in order to maintain and defend her rights, an allowance ought to be made, the court would be justified in granting one. Upon such an application, if it should appear that, in previously carrying on her action, the plaintiff had incurred expense, the payment of which was essential to be made in order that she might further maintain or prosecute her rights under the judgment, it would be quite within both the letter and the spirit of the statute to comprehend in an allowance the unpaid item of the past. The language of this provision, however liberally we are inclined to construe it, must be given its due effect in authorizing the court to order an allowance only during the pendency of the action, and when it is “ necessary to enable the wife to carry on the action.” It is apparent in this case that the wife had conducted the litigation out of her own means, or upon credit, from its commencement to a point where the case was closed, and nothing remained but an entry of a judgment on the referee’s report

Although the action might, in a strict legal sense, be said to be still pending, it did not appear that the wife needed moneys to carry it on.

We think the orders below were right and should be affirmed, but without costs.

All concur.  