
    Edith Y. Robinson, Respondent, v. George L. Robinson, Appellant.
    Second Department,
    October 6, 1911.
    Appeal — notice of appeal — husband and wife — separation — denial of . principal relief — custody of children — statutory construction.
    Although a notice of appeal from a judgment which dismissed the epmplaint in an action for separation but awarded to the plaintiff the custody of the child, and provided for the payment of alimony and for the child’s support by the defendant, in terms excludes from the appeal so much of the decree as finds as a fact that plaintiff had so acted towards-defendant as to justify the court in. refusing her a decree, the appeal must be regarded as one from the entire decree.
    Where the principal relief sought in an action for separation is denied, the court has no power to award the custody of the children of the marriage or to direct their maintenance out of the property of the defendant.
    The mere adoption of a part of the Devised- Statutes into the Code of Civil Procedure does not, in the absence of any evident intent - so to do, change the purport and scope of such provisions.
    Appeal by the defendant, George L. Bobinson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 5 th day of December, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term, with notice of an intention to: bring up for review a judgment for costs in favor of the plaintiff entered in said clerk’s office on the same ■ day. "
    
      Philo P. Safford, for the appellant.
    
      George Gordon Battle [Roger B. Wood and Leonidas Dennis with him on the brief], for the respondent.
   Hirschberg, J.:

The action is brought for a separation upon the ground of cruel and inhuman treatment of the plaintiff by the defendant. The learned trial court found as facts that the defendant was guilty of the cruel and inhuman treatment charged against him, but also found that the plaintiff’s conduct was such as to provoke and irritate her husband to the extent of constituting a complete defense to the accusations against him.' The conclusion reached by the court was that the provocation was sufficient to justify the court in refusing her a decree, but the' court refused to dismiss the complaint, and provided by a judgment for the support and maintenance of the child of the. marriage in the custody of the plaintiff and for the payment of alimony to her. While the appeal in terms-excludes so much of the decree as finds as a fact “That the plaintiff has acted towards the defendant as to give him provocation for his treatment of her, and to justify the Court in refusing her a decree,” it must be regarded in the circumstances as an appeal from the entire decree.

The learned counsel for the respondent seeks to support the decree by the provisions of section 1766 of the Code of Civil Procedure, to the effect that in an action for a separation, brought by the wife, the court may render a judgment compelling the defendant to make provision for the plaintiff and the children without rendering a judgment of separation. I do not think the section in question justifies the decree. The section was adopted from the Revised Statutes (2 R. S. 147, §§ 54, 55), and it was held by the Court of Appeals, in Davis v. Davis (75 N. Y. 221), that where the principal relief sought by the plaintiff is denied no power exists to give, judgment awarding the custody of the children of the marriage to the plaintiff and to make provision for their maintenance out of her husband’s property. The court said (p. 226): “ The fifty-fourth section authorizes the court, upon decreeing a separation, to make such further decree as the nature and circumstances of the- case may require, and for the support and maintenance of the wife and children by the husband. This section is inconsistent with an intention to confer upon the court, in all cases, whether a right to separation is or is not established, or a decree for separation is or is not obtained, the power to award to the complainant support and maintenance and the custody of the children, with provision for their support by the father. The fifty-third section authorizes the defendant, in a suit for separation, to prove, in his justification, the ill-conduct of the complainant, and declares that, on establishing such defense to the satisfaction of the court, the 'bill shall be dismissed. This section is also.inconsistent with the construction claimed for the fifty-fifth section, that although the court may find the recriminatory charges sustained, it may, nevertheless, retain the bill and grant relief to the complainant, by giving her the custody of the children and making provision for her and their support by the husband. * * * It would be an anomaly in legal proceedings to allow a complainant, who had failed to establish a claim to the principal relief sought, to have a decree against the defendant for the mere incidents to that relief. ”

In the case cited the court also held that a mere change in the phraseology or in the arrangement or division of the sections of an antecedent law, incorporated in the Revised Statutes, will not he construed as a change in the law, unless the alteration is such as evidently purports a legislative intent to work such a change. By a parity of reasoning, it must he held that a mere adoption of the provisions of the Revised Statutes in the Code of Civil Procedure should not, in the absence of any evident intent to change the purport and scope of such provisions, be construed to effect such change.

The appeal is taken under section 998 of the Code, the evidence not being returned. In ■ the circumstances, we do not feel justified in directing judgment for the defendant, but will ■ reverse the. decree and the judgment incidentally reviewed and direct a new trial.

Jenks, P. J., Woodward and Rich, JJ., concurred; Burr, J., concurred in separate memorandum.

Burr, J.

(concurring):

I concur. I think, in the language of Judge Andrews in Davis v. Davis (supra), the language of section 1166 of the Code of Civil Procedure may be construed to apply to cases where the wife, although entitled to a decree of separation, should choose to waive her right thereto, insisting only on a provision for the maintenance of herself and her children.” (See Erkenbrach v. Erkenbrach, 96 N. Y. 456, 462.) In this case the wife has not shown herself entitled to a decree for separation.

Judgment reversed, without costs, and new trial granted.  