McBride v. McBride

• Decision Date: 11 March 1890
• Citation: 119 N.Y. 519,23 N.E. 1065
• Parties: McBRIDE v. McBRIDE.
• Court: New York Court of Appeals Court of Appeals

119 N.Y. 519

23 N.E. 1065

McBRIDE

v.McBRIDE.¹

Court of Appeals of New York.

March 11, 1890.

Appeal from supreme court, general term, first department.

Action by Josephine McBride against Robert P. McBride for limited divorce. Defendant appeals from an order of the general term, reversing an order denying plaintiff's motion for alimony and counsel fees pending an appeal by defendant from a judgment of limited divorce.

Preston Stevenson, for appellant.

Samuel G. Adams, for respondent.

FINCH, J.

The special term denied a motion for a temporary allowance and counsel fee, in an action for a divorce, upon the ground that final judgment had been rendered for the plaintiff, awarding to her alimony and costs; and that, although the defendant had appealed from that judgment, and procured a stay of proceedings, and the wife had no means of support or for defending the appeal available in the emergency, yet the court was without power to grant her the desired relief. The general term reversed this order, holding that power existed to make the allowance sought, although judgment had been entered in the action, and remitted the case to the special term for a decision upon the merits of the application. From that order the present appeal is taken. The appeal must be dismissed. The order of the general term is not final. The special term is yet to act upon the application, and may refuse it upon the merits. We cannot know in advance what the ultimate determination will be. But since the question of power has been fully argued before us, and an expression of our opinion may save another appellate journey from the special term to this court, we have deemed it best to express our concurrence in the conclusion of the general term that power exists to make the allowance during the pendency of the appeal, and until the ultimate determination of the action. The special term followed the decision in Winton v. Winton, 31 Hun, 290, and some other cases in the supreme court, which merge every right of the plaintiff in the final judgment, and deny the power of the court thereafter to make a temporary allowance. No case in this court appears to have decided the question. In Kamp v. Kamp, 59 N. Y. 212, and Erkenbrach v. Erkenbrach, 96 N. Y. 456, the applications were made many years after judgment, in the absence of any appeal, and when by lapse of time no appeal was possible. The actions were no longer pending, jurisdiction over the parties had ceased, and all...