Sanford v. Sanford — 42 N.Y. St. Rep. 1

Majority

p. 1

Lizzie P. Sanford, Resp’t, v. Nathan H. Sanford, App’lt.

(New York Superior Court,

General Term,

Filed December 10, 1891.)

Headnote

Divorce—Alimony—Laws 1880, chap. 245, § 3.

An additional allowance for support of children cannot be granted after the decree is entered in a case commenced in 1888. The provision of subd. 2 of § 3 of chap. 245, Laws 1880, saving from the effect of the repeal by that act all rights, defenses or limitations lawfully accrued or established before the act took effect, relates to something which may he enjoyed and as to which facts exist which give a present right of enforcement, and as the children in 1880 were not entitled to the support as claimed it could not be granted.

Appeal by defendant from order.

B. R. Champion, for app’lt; A. Britton Havens, for resp’t.

In 1888 the plaintiff began this action for divorce a vinculo and obtained judgment. The judgment provided that the defendant pay certain money for the support and education of children of the marriage. In 1891 the application below was made for an order that the ■ defendant pay further money for the support of the children.

It is admitted that the respondent was entitled to the order only if § 59, tit. 1, chap. 8, part 2, Eev. S., 2d ed.,154 (148), is to be applied to the case. That section would permit the making of such an order after judgment. The section has been repealed by chap. 245, Laws of 1880, with saving provisions. And it is argued that § 3 of the repealing act saves from the effect of repeal cases like the present. The first subdivision declares that the repeal does not render ineffectual or otherwise impair any proceeding in an action or special proceeding had or taken pursuant to law before this act takes effect. This action was begun in 1888. The action of Erkenbrach v. Erkenbrach, 96 N. Y., 463 , and Washburn v. Catlin, 97 id., 623, were begun before the repealing act of 1880. There was no intimation of the particular subdivision of § 3 that saved the proceedings, but the first subdivison was so clearly applicable that it ismot to be decreed that there was any adjudication as to subdivision two that provides that the repeal “ does not affect any other lawful act done or right, defence or limitation lawfully accrued or established before this act takes effect.” Neither the respondent nor the children had any right within the meaning of the section. The section means not a general or political right, but

p. 2

something which may be enjoyed and as to which facts exist which give a present right of enforcement. At the time of the repealing act the children were not entitled to the support they claimed under the application below.

By presumption the defendant had fulfilled his duties and there was no right of action against him.

The order should be reversed and the motion below denied, with ten dollars costs.

Sedgwick, Oh. J, Freedman and Dugro, JJ, concur.