The Code of Civil Procedure (Chap. 15) contains certain special provisions regulating matrimonial actions, and among others actions for a divorce or separation, but it contains no provision which will sustain the case made by the plaintiff. By article 3, chapter 15 (supra), section 1762, it is declared that an action may be maintained by a husband or wife against the other party to the marriage to procure a judgment separating the parties from bed and board forever, or for a limited time for either of certain specified causes, all of which appear to exist in this case, and section 1766 provides where the action is brought by a wife, the court may in the final judgment of separation give such directions as the nature and circumstances of the case require; in particular it may compel the defendant to provide suitably for the education and maintenance of the children of the marriage, and for the support of the plaintiff, as justice requires, having regard to the circumstances of the respective parties; and it then provides that the court may in such an action render a judgment compelling the defendant to make the provision specified in this case, where, *Page 283 under the circumstances of the case, such a judgment is proper without rendering a judgment of separation.
The difficulty of the plaintiff's case is that the action brought by her is not such action as the statute authorizes. It is not an action to procure a judgment of separation. No separation is asked for, and it is apparent that the omission in this respect was intentional. The plaintiff seeks maintenance and support, nothing more, and the learned counsel for the appellant says it was competent for her to ask relief in either form, and argues that, "if the court can grant maintenance apart from other relief, then the plaintiff may properly have that alone, and to pray for relief which is not really sought is not merely a formal absurdity, but it is misleading to the defendant."
The answer, however, is that the action is a statutory one, and if prosecuted, must conform to the terms upon which it is permitted. The discretion which may withhold one kind of relief and grant the other is confided to the court, and its exercise in judicial proceedings cannot be limited by the plaintiff. The legislature has prescribed the nature of the relief to be sought, and only when that is apparent from the complaint, can the court having jurisdiction grant less than the plaintiff asks for, but has no power to do that where the object sought is not that named in the statute. The cases referred to by the appellant are not to the contrary. In Davis v. Davis (75 N.Y. 221) a remark is made which, taken by itself, implies that a plaintiff may waive a decree for separation, although entitled to it, and the appellant supposes she may so elect, at the beginning, as well as at the close of the case. But neither the text, nor the decision rendered, warrants that construction. A decree for maintenance was before the court, and was reversed upon the ground that as a cause for separation was not established, the court had no power to make provision for the wife's support, and the suggestion now relied upon was made as a possible effect of the statute then under consideration. But the question was not before the court, and the possible volition of the wife was mentioned as one of the circumstances upon which the court might, in a different case, exercise its discretion. *Page 284 In Turrel v. Turrel Jones (2 Johns. Ch. 391) the case presented was under the act (Sess. 36, chap. 102), authorizing the filing of a bill by a wife, specifying therein particularly the circumstances on which she relies, and praying such relief as she may think herself entitled to. It is plain that the only object of the bill was to have certain money, given to the wife by her father, and which was then in the hands of the defendant, Jones, as his executor, secured, as a separate provision for the wife, and it appeared that the husband had threatened that when he obtained possession of such money, he would not appropriate any part of it toward her maintenance. But the statute before us, as we have seen, declares the object of the action which the wife may bring, and the court has no jurisdiction to depart from it.
In Atwater v. Atwater (36 How. Pr. 431; 53 Barb. 621) the General Term held that the statute did not authorize a complaint to be filed by a wife for her support and maintenance by her husband, as a distinct substantive relief. This was, we think, the true construction of the statute then in question, and the one now before us must be dealt with in the same manner. Without considering, therefore, whether the residence of the plaintiff has been sufficient to give the court jurisdiction, we think the order appealed from was proper, and should be affirmed, but without costs.
All concur.
Order affirmed.