McCarthy v. . McCarthy

Gray, J. 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. 27o 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 (103 N. Y. 402), a motion was made by the defendant when the plaintiff moved for judgment on the report, that she have a further allowance to pay her expenses including counsel fees, *503 incurred, and it was held that the allowance which had been granted below was unauthorized. This section was there construed to confer the power only during the pendency of the action, and it was said “ the allowance looks to the future. There can be no necessity for an allowance to make a defense which has already been made, or solely to pay expenses already incurred.” It is difficult to see how that case is not to be regarded as a precise authority upon the present application. The appellant’s counsel seeks to make a distinction in that Mrs. Beadleston was defendant in that case, and having been unsuccessful should not be allowed to compel her husband to pay for her defense; unless it were shown that a payment was necessary to enable her to further carry on the action. This application is based upon the affidavit of one of the plaintiff’s attorneys, and shows that the counsel fees asked for represent what he has “ charged the plaintiff besides the disbursements, etc.” The allowance of such an item, which has reference to the past, within the Beadleston case, is not authorized by the Code. If, as it is hinted in the affidavit, the judgment of divorce should be appealed from, then upon an application wherefrom that fact should appear, and it should also appear that in order to maintain and defend her rights, an allowance ought to be made, the court would be justified in granting one. Upon such an application if it should appear that in previously carrying on her action the plaintiff had incurred expense the payment of which was essential to be made in order that she might further maintain or prosecute her rights, under the judgment it would be quite within both the letter and the sprat of the statute to comprehend in an allowance the unpaid item of the past. The language of this provision, however liberally we are inclined to construe it, must be given its due effect in authorizing the court to order an allowance only during the pendency of the action, and when it is “ necessary to enable the wife to ea/rry on the action.” It is apparent in this case that the wife had conducted the litigation out of her own means, or upon credit from its commencement, to a point where the case was closed *504 and nothing remained but an entry of a judgment on the referee’s report. 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.