137 N.Y. 500 | NY | 1893
This appeal is from an order of the General Term affirming an order, which denied, for want of power in the court, the plaintiff's motion "for counsel fees and extra allowance of costs in addition to plaintiff's taxable costs and disbursements." The action was by a wife to obtain a divorce from her husband, and when this motion was made the referee had reported in favor of the plaintiff, and his report had been confirmed. By his report the defendant was required to pay alimony to the plaintiff every year, commencing from the institution of the action. No motion had been previously made for alimony or allowances, and this motion upon the pleadings, evidence and proceedings had, was made when the report had been confirmed and before judgment. The question is whether under section 1769 of the Code of Civil Procedure, such a motion could be entertained. That section provides that the court may "during the pendency of the action," from time to time, order "the husband to pay any sum or sums of money necessary to enable the wife to carry on or defend the action," etc. In Beadleston v. Beadleston (
Although the action might in a strict legal sense be said to be still pending, it did not appear that the wife needed moneys to carry it on.
We think the orders below were right and should be affirmed, but without costs.
All concur.
Orders affirmed.