
    LESLIE against LESLIE.
    
      Court of Appeals;
    
      January, 1871.
    Discontinuance.—Divorce.—Temporary Alimony.
    The court have power to grant temporary alimony to a wife pending an action against her for divorce.
    
      After an order has been made, requiring a husband, plaintiff in a divorce suit, to pay temporary alimony to his wife, he cannot, without complying with it, discontinue on payment of costs, by entering an ex-parte order.
    The court of appeals refused to pass upon the terms on which leave to discontinue should be granted in such a case.
    Appeal from an order.
    In December, 1866, the plaintiff commenced an action against the defendant for divorce, in the New York superior court, which, in February, 1867, he discontinued. On January 16, 1868, he commenced this suit, in the New York common pleas. A motion for alimony and counsel fees was made, and on July 33, 1868, granted. From this the defendant appealed, obtaining a stay of proceedings. The order was, on May 18, 1869, affirmed, at general term. The decision there is reported in 6 Abb. Pr. N. S., 193, where the facts appear. On May 34,1869, he entered an ex-parte order of discontinuance, which was the subject of this appeal, and offered to pay fifty dollars costs. This order was vacated at special term, September 9, 1869. From the,order vacating it he appealed, obtaining a stay of proceedings, and on May 16, 1870, the order was affirmed at general term. Whereupon he appealed to this court.
    The complaint contained charges of adultery, which the defendant, in her answer, denied. The answer contained counter-charges of adultery against the plaintiff, and asked affirmative relief. To these charges in the original answer plaintiff interposed a reply; but they were renewed in an amended answer, to which he did not reply.
    
      Malcolm Campbell and John McKeon, for the appellant.
    I. Plaintiff’s practice in entering the order of discontinuance, ex-parte, was regular (Averill v. Patterson, 10 N. Y. [1 Kern.), 500; Cooke v. Beach, 25 How. Pr., 356; Bedell v. Powell, 13 Barb., 183).
    II. Plaintiff has an absolute right to enter an order of discontinuance upon payment of costs, at any time before he has admitted a counter-claim of the defendant against him. In the present case a reply had been served, denying all the charges of adultery set up in the answer (Oaksmith v. Sutherland, Brady, J., 1 Hilt., 265; Averill v. Patterson, 10 N. Y. [1 Kern.], 500; Cooke v. Beach, 25 How. Pr., 356).
    A counter-charge of adultery in the answer is not a “ counter claim” under the Code, and the defendant cannot have affirmative relief under such an answer (H. v. H., 40 Barb., 9).
    
    III. The remark in Daniel' s Chancery Practice (p. 731, 4 London ed.), on the authority of which the decision below seems to have been made, that “where there has been any proceeding which has given the defendant any right against the plaintiff, the latter cannot dismiss his bill as of course,” has no application whatever to the question involved in this appeal. (1.) This is shown by the illustration which is given in the text immediately after the remark quoted. (2.) It is perfectly consistent with the decisions in this State, and it refers to such a right as is mentioned in the cases of Cooke v. Beach, and Oaksmith v. Sutherland,—e. g., where a plaintiff, by admitting a counter-claim, places himself substantially in the position of a defendant, or where the statute of limitations has run against the defendant’s counter-claim after the answer has been served.
    Previous to a final decree in the English and Irish courts of chancery, the complainant had absolute control of his case, and could dismiss it on payment of costs (Citing and reviewing at length 1 Smyth Ch., 421; Carrington v. Holly, 2 Madd. Ch., 388, 3 Am. ed. ; Locke v. Nash, referred to in notes to 2 Madd., 
      
      supra ; 1 Daniel, 731, 732 ; 33 Law J. Ch., 703 ; 4 N. R., 528, L. J. J. ; Curtis v. Lloyd, 4 M. & C., 194; 2 Jurist, 1058 ; Booth v. Leycester, 1 Keene, 247; Carrington v. Holly, Dickens, 280; Locke v. Nash, 2 Madd. Treat, on Eq., 389 ; Davis v. Duke of Marlborough, 2 Swanst., 167; Small v. Atwood, Younge, 407; White v. Lord Westmeath, Beatty, 174; Cooper v. Davis, Reg. Lib., 1798 ; Cooper v. Lewis, 10 Beav., 32 ; Cooper v. Lewis, 2 Phillips Ch., 178; Ainslie v. Simms, 17 Beav., 57, 174; Markwick v. Pawson, 4 N. R., 528.
    IV. But if any great weight is to be given to the remark in Daniel, then we claim that it is in conflict with the practice and decisions of this State., (a.) In Cooke b. Beach, the defendant had taken testimony de bene esse, and was deprived of the right to use it by the plaintiff discontinuing his action, (b.) In accordance with the decision in Oaksmith b. Sutherland, if the plaintiff were a non-resident, and discontinued after a counter-claim had been set up in the answer, the defendant would lose the benefit of this jurisdiction, except under special circumstances, (c.) The rules of the former supreme court, the rules of the former court of chancery, the rule of the supreme court in this district, all concur in giving the plaintiff the absolute right to enter an order of discontinuance on payment of costs. Upon the entry of that order the action terminates, unless in some cases where special provision is made by law for the further proceedings, such as a reference to ascertain damages in case of an injunction (1 Barb. Ch. Pr., 225; Chancery Rule No. 46; 1 Burr. Pr., 383).
    Y. But there are decisions of high authority in our own land which affect much more directly the question in this case than the dictum of the second Daniel, and which decisions, by analogy, sustain the position of the plaintiff (see 2 Bish. on Marr. & D., § 439 ; Persons v. Persons, 7 Humphrey, 183; Wright v. Wright, 6 Texas, 29). In substance, these two determine that the allowance of alimony, pendente. lite, is founded upon the common law duty of a .husband to provide for the actual wants of his wife; that it is only a substitute, under a state of separation and pendente lite, for the enforcement of his liability for necessaries furnished to her ; that such alimony does not vest in her as her separate estate; that, upon the suit being dismissed, the husband cannot be obliged to pay any such alimony which may be in arrear, on the ground that if the bill be dismissed it is her duty to return to him, and that if he. refuses to receive her he will be liable for her support. Mow, if these views be correct, the wife acquires no such vested estate, right, or interest in such an allowance as to make this case an exception to the established rule allowing a plaintiff to discontinue on payment of costs. Temporary alimony is not one of the objects for for which a divorce suit is either brought or defended ; it is at best merely accessory and incidental, and is not authorized by statute in a case like the present. The statutes of our State, in regard to married women, expressly exclude the idea that the right to such an allowance, or the right to a support, is to be regarded as the separate estate of the wife. It arises from a duty on the part of the husband, for the enforcement of which there exists ample means in the law other than by compelling him against his will to prosecute a suit for a divorce. The wife acquired no right in this suit which she did not possess just as fully before it was commenced, and which she does not possess just as frilly on its termination. She not only has the same claim for a support, and the same means of enforcing it, as before, but she has the additional security of an undertaking, with two responsible sureties, for the payment of the amount awarded to her. How, then, can the court, consistently with public policy, which is undoubtedly unfavorable to divorcé snits, compel the plaintiff to prosecute the action against his will, or keep" the suit alive for the sole purpose of enforcing payment of what is erroneously claimed to be in the nature of a debt due by the husband to the wife, but the true nature of which has been already explained % The contrary view would-permit a wife to assign her claim to the allowance, and enable her assignee to keep the suit alive for the purpose of enjoying the annuity, even after the suit had been voluntarily discontinued by the husband, and after his wife had returned to live with him.
    VI. Alimony is not included in the term “costs” (Code, § 303).
    
      Mr. Justice Grover.
    Has the counsel considered why the plaintiff, on discontinuing his suit, is bound to pay costs ? Is it not because the defendant has acquired a right to costs ? If he has acquired any other right during the litigation, is he not to be secured the benefit of that right also, as a condition of discontinuance ?
    
    
      Counsel for appellant.
    We make the additional point that the court had no power to make an order for temporary alimony,—i. e., for the support and maintenance, pendente lite, of the wife of the plaintiff in a suit for divorce ; and, consequently, it was error on the part of the court to make the payment of such temporary alimony a condition precedent of the order of discontinuance.
    1. Conceding, as we do, that the court of common pleas possesses all the power and jurisdiction in such cases of the late court of chancery, neither court has ever had jurisdiction of a suit for divorce, or of proceedings incidental thereto, except in the cases and to the extent specially authorized by statute (3 Rev. Stat., 173, § 36; Peugnet v. Phelps, 48 Barb., 566 ; Atwater 
      v. Atwater, 53 Id., 621; Palmer v. Palmer, 1 Paige, 276).
    2. The English court of chancery had no jurisdiction of divorces of any kind. It was in the ecclesiastical or spiritual courts (1 Black. Comm., ch. 15, 440 ; 3 Id., ch. 7, 94; Hopkins, 557, 478; 1 Paige, 276).
    3. The only power given to the court by the Revised Statutes in regard to alimony in a suit for an absolute divorce, is : (a.) If a decree dissolving the marriage be pronounced, the court may make a fv/rther decree or order for support, &c. (2 Rev Stat., 146, § 45). (b.) In any suit for divorce or separation it may make an order, pendente lite, requiring the husband 16 to pay any sums necessary to enable the wife to carry on the suit” (2 Rev. Stat., 148, § 58). The difference between these two sections in respect to the object of the respective allowances is strongly marked. It is believed that the question now raised has never been distinctly presented to this court for adjudication. The power to make the allowance has either been assumed to exist, or the point has been passed sub silentio. In Mix v. Mix (1 Johns. Ch., 108), and in Denton v. Denton (Id., 364), the chancellor relied on the authorities cited, showing that such a power was exercised by the ecclesiastical courts in England, overlooking the fact that the court of chancery never possessed the jurisdiction of those courts in divorce cases, but derived its whole power and jurisdiction solely from the statutes, which conferred upon the court specific affirmative powers, thus excluding every other or further power or jurisdiction over the subject. These two cases were before the Revised Statutes. Kirby v. Kirby (1 Paige, 261), was decided upon the authority of the cases last cited, and no reference is made to the statute. The earliest case since the Revised Statutes was Osgood v. Osgood (2 Paige, 621), in which the court assumed the power to exist, as it was not questioned. The next case in which reference is made to the power of the court is Jones v. Jones (2 Barb. Ch., 147), in which the chancellor cites section 58 (misdescribing it as section 57) of 2 Revised Statutes, 148, as giving the court power to allow both temporary alimony and the expenses of suit. Ever since, the cases have been silent upon the question of the power of the court to make an order in a divorce suit for the support of a wife, pedente lite.
    
    
      Mr. Justice Peckham.
    Do you ask this court to overturn a practice which has been universal in our courts for the greater part of a century ?
    
      Chief Justice Church.
    In conferring on the court of chancery jurisdiction over divorce cases, were not all usual incidental powers also conferred ?
    
      Mr. Justice Grower.
    Even if it were conceded that the court of chancery originally erred in granting temporary alimony, the universality of the practice to grant it, for so long a time, would give to such practice the force of law.
    
      Andrew Boardman, for the respondent.
    I. The order is not appealable. (1.) It merely sets aside an ex-parte order. It does not prevent plaintiff from moving below for leave to discontinue. (2.) The only “actual determination” which the court below has made is that, in the condition in which the suit was, defendant had a right to be heard before entry of an order of discontinuance. This does not affect “a substantial right” of the plaintiff. He has no right to put his adversary out of court without a hearing. (3.) The effect of the order appealed from is not “to determine the action,” but to restore it. It does not “prevent a judgment from which an appeal might be taken,” for no appeal could be taken from a judgment of discontinuance. It does not “discontinue the action,” but prevents its discontinuance.
    II. If the order is treated as one imposing on the plaintiff other terms than payment of costs as a discontinuance, still it is a discretionary order, and not appealable. It is the right and the duty of the court below, to determine whether the defendant might not be injured in respect to the counter-charges by suffering this suit to be discontinued; whether the plaintiff is not now precluded from denying such counter-charges by omitting to reply ; whether, by omitting to reply, he has.not admitted on the record that the defendant has established one of her defenses, and whether leave to reply will be granted, except on condition of complying with the order of the court as to alimony. The plaintiff has not a right “existing absolutely by force of law,” to discontinue an equity suit against the judgment of the chancellor, and without complying with such terms as he may deem reasonable (De Barante v. Deyermand, 41 N. Y., 356; Foote v. Lathrop, Id., 358 ; Tabor v. Gardner, Id., 232).
    III. If the whole question were open to review, and involved the question of alimony merely, the order of the court below should be sustained. The right of the defendant to alimony has been determined by the court «.below by its orders both at special and general term, and from those orders there has been no appeal. The defendant’s right has become fixed. The right to alimony is of so high a character that it has been held that, independently of the statutes, a bill will be sustained which prays for alimony alone, without joining with it a prayer for divorce (Butler v. Butler, 4 Litt., 202 ; Gallard v. Gallard, 9 Am. Law Reg. N. S., 463). The right to alimony is so fixed and unassailable under the order of the court, that it must be paid up to the entry of final judgment, even if the decision at the trial is adverse to the wife (Stamford v. Stamford, 1 Edw., 317; Moncrief v. Monerief, 15 Abb. Pr., 188). It would be a great defect in the administration of justice if, after the long and severe struggle in this case, the right vested by the order of the court in the defendant, and the duty imposed on the plaintiff, could be nullified by him in the way here attempted. The existence of what have been termed “ common orders,” or “orders of course,” does not in any way weaken this proposition. For what was such an order % Simply one which was always allowed under a certain condition of things ; and when that condition of things existed, the attorney had the sanction of the court to enter the given order in its name and by its authority. But it was not the less the act of the court. It was not the order of the party. Hence arose the custom of the plaintiff to enter an ex-parte order of discontinuance on payment of the defendant’s costs in cases where no right to anything but costs had accrued to the defendant. As the court would always grant such an order, it allowed the plaintiff to enter it ex-parte. But still it was by leave and order of the court that he was allowed to discontinue, and in no other way. There could be no discontinuance until it was entered on the roll, for a record could not be discontinued but by matter of record, and such entry of record could only be made by leave of the court (1 Lee's Dic., 490-491; and citing and commenting on Averill v. Patterson, 10 N. Y. [1 Kern.], 500 ; Daniel's Ch. Pr., 731, 4 London ed.). Though the language of judges is sometimes a little loose in speaking of the subject, it will be found, by an examination of the cases, that in no case has a plaintiff been allowed to discontinue his suit on the payment of costs merely, when the defendant’s rights, acquired in such suit, might be impaired by such discontinuance (citing and commenting on Wilson v. Wheeler, 6 How. Pr., 49 ; Bedell v. Powell, at the Albany general term, 13 Barb., 183 ; Cockle v. Underwood, 1 Abb. Pr., 1; Van Alen v. Schermerhorn, 14 How. Pr., 287; Seaboard & Roanoke Railroad Co. v. Ward, 1 Abb. Pr., 46; Cooke v. Beach, 25 How. Pr., 356). Such being the principle, its application to this case is obvious. The right to alimony and counsel fees is a vested right, and the duty of the plaintiff to obey the order of the court is clear. Should the plaintiff go to trial, and succeed, he would have to pay alimony up to the entry of judgment. But if the plaintiff be allowed to discontinue, the defendant can no longer call on the court to aid her in obtaining the rights thus vested in her. Those rights would not only be impaired but destroyed.
   By the Court.—Church, Ch. J.

We are all of opinion that the order appealed from must be affirmed. Under the circumstances of the case, the plaintiff had no right to determine for himself upon what terms he could discontinue and enter an ex-parte order of discontinuance on the payment of costs. The terms on which leave to withdraw his suit should be granted, are matters to be determined by the court below. We express no opinion on that subject. We merely decide that the order appealed from must be affirmed with costs.

Order affirmed, with costs.  