188 N.E. 160 | NY | 1933
On November 25, 1930, the plaintiff was granted an interlocutory judgment of divorce, which became final on February 25, 1931. By its terms alimony was fixed at twelve dollars a week. Later the defendant moved for a reduction of alimony. The motion was denied and defendant appealed. Thereupon the plaintiff, with show of the requisite merits, moved for an allowance of counsel fees and the expenses of printing. The Appellate *70 Division reversed an order granting the motion, and has certified the following question to this court: "Did the Special Term have power to award the plaintiff any sum as counsel fee in the order made?"
To sustain its decision the Appellate Division relied uponLake v. Lake (
In an action for divorce, although the final judgment puts an end to the relation of husband and wife, the duty of the husband to support the wife may in substance be continued in the form of an award of alimony. (Romaine v. Chauncey,
There is nothing in Lake v. Lake (supra) in conflict with this conclusion. In that case the judgment of divorce contained no provision at all relating to alimony. Six months after the entry of final judgment, application was made among other things to insert such a provision. As the statute (Code Civ. Pro. § 1771) then stood, there was no authority to do that. Such authority came only with the enactment of chapter 240 of the Laws of 1925. With no authority, either statutory or by reservation, to deal with alimony after judgment, the court was without jurisdiction to grant counsel fees and properly so held.
The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division. The question certified should be answered in the affirmative.
CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur; POUND, Ch. J., not voting.
Ordered accordingly.