O'Dea v. O'Dea

38 N.Y. Sup. Ct. 441

• Court: New York Supreme Court
• Decided: January 15, 1884
• Status: Published

Opinion

Smith, P. J.:

The counsel for the appellant contends that the Code of Civil Procedure has taken away the power of this court, as the successor of the Court of Chancery, to make such an order as is the subject of this appeal. His argument is that section 1769, which is the only section of the Code recognizing the power of the court to make an order of that kind, applies only to actions brought to obtain a divorce, absolute or limited, for a cause arising after marriage, and in that particular, has worked a change in the statute. Put there is no such change in fact. The statutory provision on the subject, previous to the Code, was contained in section 68. (2 P. S., 148.) That section is a part of “ article fifth,” the provisions of which were applicable only to the two preceding articles, and not to article second, which related to divorces on the ground of the nullity of the marriage contract. The term “ divorce,” as used in section 58, referred only to a divorce for cause arising after marriage, as is apparent from the heading of “ article fifth.” This construction was given to section 58 by Papallo, J., in Griffin v. Griffin, (47 N. Y., 134, 136). That case, and numerous others there cited, hold that the power in question exists independently of statute, and as an incident to the jurisdiction of the court in actions for divorce on the ground of nullity. To the same effect is Brinkley v. Brinkley (50 N. Y., 184).

The motion for the order was noticed before the plaintiff appealed from the judgment of this court reversing the judgment of divorce, and the appeal did not affect the power of the Special Term to make the order.

The order should be affirmed, with ten dollars costs and disbursements.

HaediN and BaeKEe, JJ., concurred.

Affirmed.