
    Salie Straus, Resp't, v. David Straus, App'lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 15, 1893.)
    
    1. Divorce—Limited—Cruel treatment.
    Continued accusations against a wife of un chastity, if false and made without sufficient cause, constitute cruel and inhuman treatment sufficient to justify a judgment of separation.
    2. Same.—Counsel fees.
    No allowance can in the final judgment be properly made to the wife for expenses of the action. Such allowance can only be granted by an order, but past expenses cannot be included therein.
    Appeal from judgment in favor of plaintiff, granting a separation and for the custody of her child, and for twelve dollars per week alimony for plaintiff and two dollars per week for the child, and costs and counsel fee of $500 additional, to be paid by defendant.
    
      Edward J. Maxwell, for app’lt;
    
      Westbrook, Borst & Perkins {Z. S. Westbrook, of counsel), for resp’t
   Putnam, J.

I am unable to see how we could properly disturb the findings of the learned referee upon the questions of fact submitted to him. It was a case of conflicting evidence, and we feel concluded by his decision. There was sufficient testimony given to sustain his conclusions upon the facts, and such being the case the plaintiff was entitled to a judgment of separation.

The testimony shows, and the referee found, that defendant, without reasonable cause, falsely and repeatedly accused plaintiff with being an unchaste woman; with having had unlawful intercourse with one Solomon Levi, and with other men. I think such an accusation constituted cruel and inhuman treatment of plaintiff by defendant sufficient to justify a judgment of separation, if no other ground of complaint existed. Such a charge, if false and made without sufficient cause, as found in this case, is more cruel than blows or any mere physical violence. The duty devolves upon a husband to protect his wife, not only her person, but also her reputation; and when, instead of fulfilling that duty he cruelly traduces her character, the court can properly protect her by a judgment of separation.

The testimony in this case shows that defendant not only cruelly and repeatedly aspersed the character of his wife, but also assaulted and otherwise ill-treated and abused her.

If there was any condonation by plaintiff, subsequent acts of cruelty committed by defendant revived the condoned offenses.

Hence the judgment as far as it provides for a separation of plaintiff from defendant must be affirmed.

The defendant objects to the allowance of $500 awarded to plaintiff in the judgment “for a further reasonable and necessary counsel fee and allowance in this action for the costs and expenses, services and disbursements of her attorney and counsel herein, expenses incurred and to be incurred to the entry of the judgment.”

This objection raises two questions. Can any extra allowance or allowances for expenses of counsel be properly awarded in the final judgment in an action for divorce or separation ? And, if so, can such an allowance be made for past expenses.

The only authority for the allowance of alimony, expenses of the action or costs contained in the Code is found in §§ 1766 and 1769. The former section is silent on the subject of costs and expenses, and provides for an allowance for support and maintenance of the wife in the final judgment. Section 1769 provides for the payment of alimony and the expenses of the action during its pendency and for a judgment in favor of the successful party with costs, evidently referring to the ordinary costs of an action. This section, which is the only authority for an order directing the payment of expenses of the wife for counsel in the action, evidently means that such direction shall be given in the order and not in the final judgment.

This construction of § 1769 has been given in several cases. Thus in Percival v. Percival, 14 St. Rep., 255, 256, it is held “ that expenses pendente lite if they are to be awarded at all must be awarded upon special application and cannot properly form a part of the final judgment.” In the same effect is Williams v. Williams, 25 St. Rep., 186; and see Stampfer v. Stampfer, 33 id., 807.

I think, therefore, that no allowance can in the final judgment be properly made to the wife for expenses of the action. The case of McBride v. McBride, 119 N. Y., 519, 30 St. Rep., 78, to which the respondent refers, merely holds that an action may be deemed pending for the purpose of allowing expenses to the wife, both before and after judgment, if an appeal is taken, evidently contemplating an allowance by order and not as a part of the final judgment.

The case of Percival v. Percival, 124 N. Y., 631; 35 St. Rep., 340, to which the court below referred, merely determined that in the judgment past expenses of the wife for support and maintenance can be provided for; but such an allowance is authorized by § 1766 of the Civil Code, which does not provide for the costs or expenses of the action.

If, however, a provision could be properly made in the judgment for expenses of the wife in an action, such an allowance, I think, could not, under § 1769, supra, be made for past expenses, those already incurred by the wife, as it appears was done in this case. Beadleston v. Beadleston, 103 N. Y., 402; 3 St. Rep., 634.

The opinion at special term suggests that, although the court on a motion before judgment has no power to order the husband to pay past expenses of counsel in the action, as determined in Beadleston v. Beadleston, supra, yet the same court has such power in the final judgment. I am unable to see how § 1769 of the Civil Code can be properly so construed, or that it can be deemed to give a court power in rendering final judgment, to allow for past expenses, which it could not provide for in an order before judgment. The court possesses no more power when rendering judgment than when making an order before judgment.

As I have suggested, in Percival v. Percival, to which the court below referred, the allowance for support and maintenance was made under the provisions of § 1766, supra, which section is silent on the subject of costs and expenses of the action.

The allowance to plaintiff, therefore, in the judgment for the expenses of counsel incurred, and to be incurred, was unauthorized. The motion for the allowance was made at the same time as the motion for judgment, and when the proceedings in the ac- • tian were substantially ended, and it is not claimed that the $500 counsel fee, as far as it provided for the payment of past expenses, was necessary in order to enable'plaintiff to further carry on the action.

The action being determined when the judgment or order making the allowance was entered, such could not be the case. ISTor can the allowance be sustained under McBride v. McBride, supra, because it provides for the payment of the expenses of counsel up to the entry of judgment, and not expenses upon an appeal.

The allowance in question is doubtless a reasonable and fair provision and I have examined the case with the desire to sustain it But in my judgment it is unauthorized and, therefore, the judgment should be modified by striking said allowance therefrom and as modified affirmed, without costs of appeal to either party.

Mayham, P. J., and Herrick, J., concur.  