
    Mary W. Livingston, Appellant, v. William S. Livingston, Respondent.
    
      Alimony — constitutionality of chapter 742 of the Lams of 1900, authorizing the modification of a judgment therefor, rendered prior to its passage.
    
    The constitutionality of section 1759 of the Code of Civil Procedure, as amended by chapter 742 of the Laws of 1900, authorizing the court to modify the provisions of a final judgment of divorce, rendered in an action brought by the wife, in respect to alimony, if the circumstances of the parties should change, whether or not the judgment was rendered prior to the amendment, will not be determined on an appeal from an order, made on an application to modify such a judgment rendered prior to the amendment, appointing a referee to take proof of the circumstances of the parties and to report the same to the court, as the proof given on the reference may convince the court that the judgment' should not be modified even if the power to do so exists.
    Appeal by the plaintiff, Mary W. Livingston, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of May, 1901, appointing a referee to take proof of the present circumstances of the parties to the action and to report the same to the court with opinion.
    On the twenty-eighth day of April, 1892, a final judgment of divorce was entered herein in favor of plaintiff, and awarding her. the custody of two children, the issue of the marriage, and requiring defendant to pay her the sum of $4,000 per annum during her life for the support and maintenance of herself and children. The decree further required defendant to execute a bond in the sum of $10,000 to secure such payment. Defendant has filed the bond and made the payments required by the decree. The right was not reserved in the decree to make a further application for a modification of the terms thereof.
    In 1899 an application tending to show quite a serious change in his financial circumstances was made by defendant for the modification of the decree as to the amount to be paid for the maintenance of plaintiff and the children. The motion was denied for want of statutory authority (46 App. Div. 18). Section 1759 of the Code of Civil Procedure was thereafter amended by chapter 742 of the Laws of 1900, so as to authorize the court on application to vary or modify the direction contained in such judgments, whether theretofore or thereafter rendered, as to the payment of moneys for the support and maintenance of a wife and children. After this amendment the defendant renewed his application, and the court thereupon appointed a referee to take proof of the present circumstances of the parties and to report with his opinion thereon. The appeal is from this order of reference.
    
      A. H. Hummel, for the appellant.
    
      J. Yam Yechten Olcott, for the respondent.
   Laughlin, J.:

It is sought by this appeal to have the court pass upon the constitutionality of the amendment to section 1759 of the Code of Civil Procedure, by which the Legislature has authorized the courts upon notice and proof, to vary or modify the direction contained in a final judgment of divorce theretofore rendered with respect to the payment required to be made by the husband for the support and maintenance of his wife and children. The order is interlocutory and we decline to pass upon this constitutional question at the present time. (People ex rel. Trowbridge v. McNamara, 18 App. Div. 17; People ex rel. Iselin v. Tilford, 23 id. 625.) It is not necessarily involved in the case. The proof may satisfy the court that the decree should not be modified even if the power to modify exists. The reference should be permitted to proceed, and the motion should be heard upon the merits; then, if the constitutional question necessarily arises, it may with propriety be authoritatively decided.

The appeal should be dismissed, but without costs.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concurred.

Appeal dismissed, without costs.  