53 N.Y.S. 831 | N.Y. App. Div. | 1898
On the 31st of July, 1885, a judgment was entered in this action by which the plaintiff was awarded an absolute divorce from the defendant. It contained, however, no direction requiring the payment of alimony to the plaintiff, but instead there was the following “It is further ordered and adjudged that the question of alimony and the amount to be paid, if any, by tile- defendant George W. Hauscheld for the support,, maintenance and education of said child, Reese C. Hauscheld, be reserved for the future consideration. of this .court.’’ No application was made to the court to exercise its discretion in regard, to the matter reserved until 1895, when, upon motion, an order was made requiring the defendant ■ to pay to the plaintiff eight dollars a week. This order was made upon notice, and contains a recital that counsel appeared for the
The jurisdiction of the court in actions for separation and for divorce is purely statutory, and it has no authority to make any order or direction in such actions except such as is given to it by the statute which confers jurisdiction. The power to grant alimony is conferred, but it must be exercised only in the' way in which the statute authorizes it and at the time when the statute permits it to be done. The statute in force in that regard at the time the original judgment was made in this action was contained in the Code of Civil Procedure, and authorized the court, in a final judgment dissolving the marriage, to require the defendant to provide suitably for the education and maintenance of the children of that marriage., and for the support of the plaintiff, as justice required, having regard to the circumstances of the respective parties. (Code Civ. Proc. § 1759, subd. 2.) The power given by this statute is substantially the same which was given by the Revised Statutes. (2 R. S. 145, § 45.) Under that section it had been held that when the court had once acted upon the question of alimony in the final judgment, it was powerless to modify the ■ direction therein made, and that if the final judgment contained no provision whatever with regard to alimony it would be construed as a denial of it, and there was no power after the entry of final judgment by further directions to grant the alimony which had been refused in the final
Did that reservation continue in the court the jurisdiction to make a determination as to ¡alimony, although final judgment has been entered in the action % We regard that question as no longer an .open one in this State. Passing by the cases of Cooledge v. Cooledge and Forrest v. Forrest, above cited, very recent cases in which the question has been discussed by the Court of Appeals,
It is claimed, however, that the case of Walker v. Walker (155 N. Y. 77) is an authority against this conclusion and substantially overrules these cases. In Walker v. Walker the question arose upon an appeal from the order modifying the judgment by granting alimony, and it appeared that no reservation of the question of alimony had been made by the court, and, because of that fact, that case is not authority in the case at bar. It clearly could not have been the intention in that case to overrule the case of Galusha v. Galusha, or of People ex rel. Comrs. of Charities v. Cullen, both of which were recently decided, because no reference was made to either of those cases in the opinion in Walker v. Walker ; and the case of People ex rel. Comrs. of Charities v. Cullen was decided by a court composed of precisely the same judges as those sitting when the' case of Walker v. Walker was determined. The cases are clearly distinguishable and cannot be controlled by the same
It is said, however, that the statute permits alimony to be granted only by the final judgment. But so long as there is a reservation of matters for the further consideration of the court, the judgment is not final until those matters are finally disposed of. ' The order of March' 12,1895, should have been made a portion of the judgment, which would then have become a final judgment, within the provisions of the Code. But this is a mere matter of form, which does not affect the validity of the order which is sought to be set aside. If it. were necessary to enter the direction for the payment of alimony, a formal order- for such a direction must have been made before the final judgment could have been entered. We must conclude, therefore, that the court had jurisdiction to make the order for the payment of alimony, and that the remedy of the defendant was only by appeal.
Eor that reason, the order appealed from must be affirmed, with ’ ten dollars costs and disbursements.
Barrett, O’Brien and Ingraham, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.