
    MEO v. MEO.
    
      N. Y. Supreme Court, First District, Chambers ;
    
    
      October, 1888.
    
      Alimony.] In an action brought by the wifa against the husband to’ annul the marriage onthe ground of fraud, the court has no power to grant alimony and counsel fees, pendente lite, to the plaintiff.
    
    
      Motion for alimony and counsel fees.
    
      
       See, however, O’Dea v. O’Dea, 31 Hun, 441; aff’d, it seems, but without opinion, in 95 N. Y. 667, sustaining a motion by the wife for alimony and counsel fee in an action against her by her husband to annul the marriage on the ground that the wife had a former husband living.
      
        In cases of divorce, the question how to get a divorce is diminishing in difficulty, if not in importance, in comparison with the importance of the question, how to secure the desired permanent alimony. This is one of the most important subjects both in preparation for trial, on the trial, and in framing findings and judgment. And it is the more so because the suggestions of the statute on the subject are very meagre. The court may protect the wife’s separate property, may fix and provide for the payment of the alimony, and direct whether it shall be or shall not be in lieu of dower; and in recent cases it is not uncommon to anticipate all controversy as to the effect of death, by qualifying the old direction continuing the wife’s alimony during her natural life, by adding or substituting “ until she shall again marry.” And if there has been a separation agreement, the judgment should declare whether it is superseded or not. 2 Abbott's New Prac. & Forms, 914.
      One aspect of this subject has been recently very fully discussed in Story v. Story (Ill., Oct. 1888), well reported in 18 Northeastern Rep. 329. In that case,.a consent decree for alimony provided for the payment of an annual sum to the plaintiff “for so long as she may be and remain sole and unmarried,” payable quarterly “during the time aforesaid.” By a bond and trust deed executed the same day, reciting the decree “which said obligor hath agreed and doth agree to perform,r the husband bound himself, his heirs, executors and administrators. The deed recited that it was given to secure that bond and contained a power of sale on default of “ the party of the first part, his heirs,” etc. Provision was made for insurance, to be kept up as long as the alimony should be payable, the duty of keeping it up to be binding on the heirs of the husband, and the grantees and purchasers of the premises. Held, that the payment of the alimony did not terminate on the death of the husband, the plaintiff remaining sole and unmarried.
      The court review a number of cases, and treat the question as turning on the construction of the language of the agreement and the decree.
    
   O’Brien, J.

This is an application for alimony and counsel fees, pendente lite, in an action brought by the wife against the husband, and to annul the marriage on the ground of fraud.

The defendant resists the motion on the ground of want of power and jurisdiction in the court to grant any alimony or counsel fee in an action of this nature.

The plaintiff contends that, whether express power is granted or not by the Code, the right to give the relief in cases of this character rests upon the incidental powers formerly vested in the court of chancery to which the supreme court has succeeded, and that an allowance does not depend wholly upon the Code of Civil Procedure, but upon the practice of the courts as it previously existed.

It remains, therefore, to determine whether alimony and counsel fees can be allowed under the Code by any provision of the Revised Statutes or by the practice of the courts.

First, as to the Code: It would seem that the provisions of the Code for alimony and counsel fees are limited to actions for divorce and separation.

Section 1769 of the Code provides: “ That where an action is brought as prescribed in either of the last two articles, the court may in its discretion, during the pendency thereof . . . make or modify an order . . . requiring the husband to pay any sum . . . necessary to enable the wife to carry on or defend the action,” etc.

The last two articles referred to relate to : (a) Actions for divorce; (h) Actions for separation—and therefore it would seem that article 1, which includes “ actions to annul a marriage,” is not- included within the provisions of the section, and no provision whatever is made by the Code for alimony and counsel fee.

Second, as to the Revised Statutes: A distinction is seemingly made between actions brought by the wife and those brought against the wife, to set aside a marriage contract (North v. North, 1 Barb. Chan. 241, 243) ; and in the case of Griffin v. Griffin,(47 N. Y. 134), the learned judge, in delivering the opinion of the court, says: It is also very properly restricted to cases where the wife admits the existence of a valid marriage, and seeks a divorce or separation for subsequent misconduct of the husband. Where she denies the existence of the marriage, she cannot consistently claim that the defendant is under any obligation to provide her with means to carry on her suit against him.”

As to the third—the practice of the courts: It would, seemingly, be against the granting of such allowance (Bloodgood v. Bloodgood, 59 How. Pr. 42; Isaacsohn v. Isaacsohn, 3 Mon. Law Bul. 73).

It is true that the case of Allen v. Allen, decided at Special Term of this court (not reported), is authority for plaintiff’s contention. And it would seemingly appear by ■'the statement of the learned judge in the matter of Anonymous (15 Abb. Pr. N. S. 308), wherein the learned judge says: “ That the court is authorized in every suit brought for divorce or separation to require the husband to pay a suitable snm to enable the wife to carry on the suit. Ho distinction is made between a suit for divorce upon the ground of nullity of the marriage, or for any other cause; all are denominated divorces, or separations.”

The Code, however, makes the distinction between cases for divorce and separation and cases brought to nullify the marriage, and in view of the expression quoted from the case of Griffin v. Griffin, and the fact that the Bevised Statutes do not provide for such allowances in such actions, and that as to the practice of the courts the weight of authorities is seemingly against the granting of such relief, I am reluctantly obliged to deny the motion. Had I concluded that the court had the power, regarding the present case as a proper one upon the facts disclosed, I would have granted the motion for alimony and counsel fee. Ho costs.  