Livingston v. Livingston

65 A.D. 242, 72 N.Y.S. 487

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1901
• Status: Published

Opinion

Laughlin, J.:

It is sought by this appeal to have the court pass upon the constitutionality of the amendment to section 1759 of the Code of Civil Procedure, by which the Legislature has authorized the courts upon notice and proof, to vary or modify the direction contained in a final judgment of divorce theretofore rendered with respect to the payment required to be made by the husband for the support and maintenance of his wife and children. The order is interlocutory and we decline to pass upon this constitutional question at the present time. (People ex rel. Trowbridge v. McNamara, 18 App. Div. 17; People ex rel. Iselin v. Tilford, 23 id. 625.) It is not necessarily involved in the case. The proof may satisfy the court that the decree should not be modified even if the power to modify exists. The reference should be permitted to proceed, and the motion should be heard upon the merits; then, if the constitutional question necessarily arises, it may with propriety be authoritatively decided.

The appeal should be dismissed, but without costs.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concurred.

Appeal dismissed, without costs.