
    LIZZIE P. SANFORD, Respondent v. NATHAN H. SANFORD, Appellant.
    
      Allowance for support of children in case of an absolute divorce, when once fixed in the final judgment or decree it cannot.be increased.
    
    Before Sedgwick, Ch. J., Freedman and Dugro, JJ.
    
      Decided November 10, 1891.
    Judgment for absolute divorce was entered in this action October 5, 1888, in favor of the respondent, upon the ground of adultery, awarding her $800, payable quarterly, as alimony, and also the custody of their two children, and. $250 each, payable quarterly, for their support, maintenance and education. These amounts, making $1300 annually, have been paid to the respondent. In June last, the respondent made application to this court to have the amounts allowed to the children increased, and his honor Justice Me Adam granted her application, increasing the allowance to each child $150. From this order, granting such increase, this appeal is taken.
    
      B. R. Champion, for appellant, argued:
    The respondent insists that the court has such authority under sec. 59, title 1, Chap. 8, Part 2 of the Revised Statutes, and the special term took that view of the case, citing Erkenbach v. Erkenbach, 96 N. Y., 463, and Washburn v. Catlin, 97 N. Y., 623. With due respect, we think the special term is in error when it says, “ the provision for the support and education of the children may be altered to suit their necessities, and this, whether the action be for limited or absolute divorce.” The Code, as we have seen, gives no such authority. Does the statute ? Section 59, aforesaid, in force when the Code went into effect, gave the court power, in an action where the wife was plaintiff, to make such order for the custody, care and education of the children, as might seem necessary and proper, either before or after judgment, and whether the judgment was for a divorce or separation. The Code, § 177Í, embraces this provision, but limits the making of such order, after judgment, to cases of separation only. Now, chapter 245 of the Laws of 1880 repealed section 59 aforesaid. It reads : “ 4. The following portions of chapter eighth: All of title first, except article first thereof and section 49 thereof. Section 49 is in article 4th of title 1, and is embraced in that portion repealed. If the intention of the legislature was not to repeal § 59, why was the provision at the end of § 1771 of the Code, ‘ Where the action was brought as prescribed in article Third of this title (action for a separation) the court may, by order, at any time after final judgment, annul, vary or modify such a direction,’ inserted at all ? It uses the same terms as are used in § 59. But we may be told that § 3 of the repealing act (chapter 245, Laws of 1880 aforesaid) preserves the right given by § 59. If preserved at all, it is by the following provision: It does not render ineffectual, or otherwise impair any proceeding in an action or a special proceeding had or taken pursuant to law before this act takes effect; and where the repeal of a provision specified in that section would render ineffectual, or otherwise impair such a proceeding, that provision must be deemed to remain unrepealed for the purpose of avoiding such a result.” Now we insist that this provision only applies to and relates to cases pending of determined before this repealing act was passed, or at least, before it went into effect, and has no reference or application to cases arising afterwards. Such cases are to be conducted under the Code exclusively.
    
      A. Britton Havens, for respondent, argued :
    The propriety and justice of granting this application were abundantly shown by the proofs before the court.
    The power of the court to grant such an application can be found in the well-recognized doctrine that courts always have control over their own proceedings and can vary or modify their judgments to accomplish what is just. Courts have always control over their own proceedings, and, where there is no express prohibition, may deal with them so that what is right and just may be reached. In the Matter of the City of Buffalo, 78 N. Y., 370, and cases cited. The cases in which this power has been exercised are very frequently reported. See, for example: Prior v. Prior, 15 Civ. Pro. Rep., 436; Emmerich v. Hefferan, 97 N. Y., 619; Matter of Accounting of Hawley, 36 Hun, 258 (reversed on other grounds, 100 N. Y., 206). See also Diets v. Farrish, 43 N. Y. Super., 87, in which case it was said that the court has power independent of statute to modify, vacate or set aside its orders and judgments, and may exercise it in behalf of one in whose favor the order or judgment was entered. It is plain, therefore, that the order granted herein may be regarded as a variation or modification of the original decree in the action, or as an order entered at the foot of the decree, and as made in pursuance of the well-recognized authority of courts to modify their own judgments; and that this was a just and proper case for the exercising of that power, we submit, has already been made to appear.
    The power, however, to make further provision for the custody, care and education of the children of the marriage after a final decree is expressly given in section 59, title I., chapter VIII., part II., of the Revised Statutes. The section referred to reads as follows : “In any suit brought by a married woman for a divorce, or for a separation from her husband, the court in which the same shall be pending may, during the pendency of the cause, or at its final hearing, or afterward, as occasion may require, make such order as between the parties, for the custody, care and education of the children of the marriage, as may seem necessary and proper, and may at any time thereafter annul, vary or modify such order.” It is true that it is well settled that the courts in this state have no common law jurisdiction over the subject of divorces, and their authority is confined altogether to the exercise of such express and incidental powers as are conferred by the statute. Erkenbach v. Erkenbach, 96 N. Y., 463. And it must likewise be conceded that there is no express provision in the Code of Civil Procedure for the making or modification of orders' or judgments providing’ for the payment of alimony, or of sums awarded for the maintenance and support of children after a decree is entered, although an exception is made in the case of actions for a separation, as it is provided in section 1771 of the Code that in such actions the court may by order at any time after final judgment annul, vary or modify the directions given for the custody, care and education of the children. It is also true that chapter 245 of the laws of 1880 repeals that part of the Revised Statutes which contains the section we have quoted, but the Court of Appeals has held that the right given by the section in question was preserved by section III. of the repealing act. See Washburn v. Catlin, 97 N. Y., 623. In the case last cited just such an application was approved as has been granted in this case; and in the case of Erkenbach, v. Erkenbach, already cited, while it was held that no order could be made or modified after decree, in respect to alimony, it was at the same time determined that further provision could be made for the care, custody and education of the children of the marriage under the section already cited. The Erkenbach case is cited and approved in Washburn v. Catlin (supra), and although these cases were decided in 1884, that is, four years after the repealing act took effect, in the opinion in the first mentioned case (96 N. Y., 466) it is expressly stated that the result reached seems also to conform to the existing practice as provided for by sections 1766, 1769 and 1772 of the Code of Civil Procedure, and would make the practice in respect to the subject uniform, not only as to future, hut as to existing decrees. It is true that it does not appear from the opinions in the two cases in the Court of Appeals which we have just cited which one of the fourteen subdivisions contained in section III. of the repealing act of 1880 saves section 59 of the Revised Statutes, hut it is apparent that that purpose is effected for either of the cases cited, as well as for the case at bar, by the qualifications mentioned in subdivisions I. or II. of section III. Subdivision I. provides that the repeal affected does not render ineffectual or otherwise impair any proceedings in any action or special proceeding had or taken pursuant to law when this law takes effect. And subdivision II. provides that it does not affect any lawful act done, or right, defence or limitation lawfully accrued or established, before this act takes effect; and every such right or act remains as valid and effectual as if this act had not been passed. The cases in 96 and 97 N. Y. might have come within either of these provisions, but it is plain that the case at bar falls directly within the provisions of the second subdivision, which provides that the repealing act does not affect any right lawfully accrued or established before this act takes effect, and that every such right remains as valid and effectual as if the act had not been passed. Now it will be at once conceded that there is no right more sacred or more fundamental known to the law than that of the right of the minor child to be supported by its parent, and particularly by its father. Bl. Com., 448; 2 Kent Com., 190; Schouler’s Domestic Relations, page 318. And the principle is clearly established (it is said in Schouler’s Domestic Relations, page 322), both in England and America, that the father must, if he can, maintain his infant children, whatever their expenses may be, and no allowance will be made him for that purpose out of their property while his own means are adequate for their support. The principle is equally elementary, that the right of the child to be supported by its father accrues at the birth of the child. It follows therefore that the children in the case at bar having been born before the statute took effect, to wit, in October, 1880, their right to he supported by this defendant was a right which accrued while section 59 of the Revised Statutes was in existence and was clearly exempt from the provisions of the repealing act by subdivision II. of section III. of that act, to which we bave referred. It may be observed, therefore, in conclusion, that while the legislature may have failed to provide in its new system of procedure (contained in the Code), for any method of increasing the allowance for the support of children of the marriage in the event of a change in circumstances, after a decree of absolute divorce, that that salutary provision in the Revised Statutes affecting this purpose was clearly preserved for children whose right had accrued before that act took effect which swept away the old system of procedure in matrimonial cases.
   Per Curiam.

In 1888 the this action for divorce a vinculo and obtained judgment. The judgment provided that the defendant pay certain money for the support and education of children of the marriage. In 1891 the application below was made for an order that the defendant pay further money for the support of the children.

It is admitted that the respondent was entitled to the order only if § 59, tit. 1, ch. 8, pt. 2, Revised Statutes [2d ed.], 154 (148) is to be applied to the case. That section would permit the making of such an order after judgment. The section has been repealed by ch. 245, Laws of 1880, with saving provisions. And it is argued that section 3 of the repealing act saves from the effect of repeal cases like the present. The 1st subdivision declares that the repeal does not render ineffectual or otherwise impair any proceeding in an action or special proceeding had or taken pursuant to law before this act takes effect. This action was begun in 1888. The action of Erkenbach v. Erkenbach, 96 N. Y., 463, and Washburn v. Catlin, 97 N. Y., 623, were begun before the repealing act of 1880. There was no intimation of the particular subdivision of section 3, that saved the proceedings, but the first subdivision was so clearly applicable that it is not to be deemed that there was any adjudication as to subdivision 2, that provides that the repeal does not affect any other lawful act done, or right, defence or limitation lawfully accrued or establisted before this act takes effect.” Neither the respondent nor the children had any right within the meaning of the section. The section means not a general or political right but something which may be enjoyed and as to which facts exist which give a present right of enforcement. At the time of the repealing act the children were not entitled to the support they claimed under the application below. By presumption the defendant had fulfilled his duties, and there was no right of action against him.

The order should be reversed and the motion below denied, with ten dollars costs.  