#### Josephine M. McBride, Pl’ff, *v.*Robert P. McBride, Def't.

*(Supreme Court, General Term, First Department,*

*Filed January 24, 1890.)*

Divorce—Alimony pending appeal.

In an action for limited divorce plaintiff had judgment. Defendant appealed and gave security. He thereupon ceased to pay alimony theretofore allowed. The plaintiff then moved for alimony and for counsel fees to defend the appeal. This was denied. *Held,*error. Under § 1769, Code Civ. Pro., the court has power to make such allowance during the pend-ency of 1 he action, and the action cannot he said to he determined until final judgment upon any appeals which may he taken.

Appeal from order denying plaintiff’s motion for alimony and counsel fees pending an appeal from a judgment of limited divorce granted in favor of the plaintiff, and from a portion of the order granting leave to apply to the justice who made the final judgment.

*W. Bourlce*Cochran, for pl’ff; *Preston Stevenson,*for def’t.

Yah Bbunt, P. J.

On the 9th day of August, 1889, the plaintiff recovered a judgment, after a trial upon which the defendant appeared and defended, against the defendant for a separation from bed and board, with an allowance of $5,000 a year for her support and $1,000 a year for that of the child of the parties. The defendant appealed therefrom, and it is stated by the plaintiff’s attorney that the defendant gave the security required by law to perfect his appeal and obtain a stay, although such fact does not appear by the papers printed upon this appeal. An undertaking appears, but no order appears fixing the security.

The defendant has refused since the judgment to pay anything for the support of the plaintiff or her child.

Prior to the rendition of the judgment he had been paying alimony. The plaintiff thereupon made an application at the special term upon an affidavit showing these facts, and also the fact that an allowance for counsel fees was necessary to enable her to defend the appeal and to compensate her counsel for the services to be rendered therein, for an allowance for the support of herself and her child pending the appeal, and also for an allowance with which to pay counsel.

This application was denied by the learned justice at special term, he holding that under the rule laid down in *Erkenbrach*v. *Erkenbrach,*96 N. Y., 456, the court had no power to make such .an order, and gave leave to apply to the judge who had" made the final judgment.

From that part of the order denying the motion the plaintiff ■•appeals, and from that part of the order granting leave to apply •.to the judge who gave the final judgment the defendant appeals.

The learned counsel for the plaintiff urges that if the court -can find no authority in the law to grant his motion, because of the manifest hardship of his case, it should assume the place of the law -makers and supply the omission of the legislature.

If the decision of the appeal of the plaintiff in her favor depends ■upon the ¡assumption of any such power, it should certainly fail. *257notwithstanding the fact that in the past courts have, and probably in the future will, in direct hostility to the whole spirit of our government, arrogate to themselves the right to legislate where the hardships of the case seem to demand it.

The decision in the court below was based upon the case of *Erkenbrach*v. *Erkenbrach,*96 N. Y., 456, and *Kamp*v. *Kamp,*59 id., 212.

In those cases it was held that after final judgment no allowance can be made for alimony and counsel fees, and this is concededly the 'rule. But in the case at bar there never has been a judgment which has become final in the manner in which the judgments in the cases cited had become final. It is true a judgment has been entered, but it has never become final, as an appeal is pending from it, and it may be reversed or modified. A judgment becomes final only when there is no longer any right to interfere with the same, or review the same, as matter of right. Costs are often made to depend upon the final event of the action. This clearly means the final determination of the action by which the rights of the parties are irrevocably fixed. As long as there is any uncertainty as to the final result because of a pending appeal, the judgment ordered at the trial is not the final result of the action. If a judgment is a final judgment, it is the final result of the action, and it ends the action. An action is not ended as long as an appeal of which the appellate court had jurisdiction is pending. The very use of the word final judgment shows that it is the judgment which ends all the proceedings.

The provision of the Code, therefore, § 1769, which authorizes the court, during the pendency of the action, to make orders directing the husbands to pay such sums as may be necessary to enable the wife to prosecute or defend the action, etc., therefore confers ample power upon the court to act until the final determination of the action. It is as necessary for the wife to live pending an appeal and to be able to defend an appeal as it is to be able to try her action and to live until the trial, and when the legislature gave the court power to act during the pendency of the action it was undoubtedly intended that this power should exist until the final determination of the action.

This right in the court is expressly recognized in the case of *Beadleston*v. *Beadleston,*103 N. Y., 402; 3 N. Y. State Rep., 634. In that case after judgment from which an appeal was pending an allowance for past services was granted and this order the court reversed, the court saying, “the purpose of the statute is to furnish the wife means to carry oh her action or defend the same during the pendency thereof. The allowance looks to the future. There can be no necessity for an allowance to make a defense already made or solely to pay expenses already incurred” In the case cited it did not appear nor was it claimed that any further sum was necessary to carry on her defense. Her sole claim was that she needed the money to pay expenses theretofore incurred, and the sole ground upon which the order was reversed was, as *258already stated, that the court had no power to make allowances for past expenses. It is plainly intimated, we might almost say stated, that if this allowance had been made for future expenses under the circumstances, of that case, the court would have had jurisdiction to make the order; whatever, if anything, may have been said in *Winton*v. *Winton,*31 Hun, 290, and *Fagan*v. Fagan, 39 id., 531, cannot override the plain intention of the court of appeals in the case of *Beadleston*v. *Beadleston.*As long as the judgment is not a final judgment the rules laid down in *Erkenbrach*v. *Erkenbrach*and *Kamp*v. *Kamp*have no application.

It seems to us that pending an appeal the action is pending and express authority is given to act.

The contrary view would lead to the result that if the husband appeals and is able to give security to procure a stay upon a judgment in favor of the wife, the wife would be worse off than she was before she had successfully established her cause of action.

By § 1327 of the Code the defendant, upon giving security as required by that section, is entitled to a stay upon the judgment against him as a matter of right, and the court cannot enforce the judgment, and if the power to give alimony, etc., pending the action, as prescribed by § 1769, ends when a judgment is entered although an appeal be pending, then by giving security the wife may be, until the court of appeals have finally passed upon the case, deprived of all the fruits of success.

Such was not the intention of the legislature and such is not its language.

An action is pending as long as an appeal is undetermined and the right given by § 1769 to make these allowances during the pendency of the action clearly contemplated the fact that as long as the litigation continued, so that the wife could not reap the results of a judgment in her favor, the court should have the right to protect her interests. The appeal of the defendant is without merit; no right of the defendant is in any way interfered with.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion remitted to the special term for further action.

Daniels, J.

I concur on the authority of the decision made by the court of appeals in *Beadleston*v. Beadleston, conceding in its effect, that during the pendency of an appeal from the judgment this court may, on motion of the wife, provide her with necessary alimony and expenses to furnish her with support and defray the expenses of resisting the appeal.

Beady, J., concurs.