The plaintiff commenced this action against the defendant for an absolute divorce on the ground of adultery. She recriminated in her answer and denied the charges made against her. The cause being at issue was referred to a referee to hear and determine the same, and he, after hearing the evidence, made his report, wherein he found the defendant guilty of the adultery charged and the recriminating charges untrue, and he ordered judgment in plaintiff's favor. Before the trial of the action the court, upon motion of the defendant, made her an allowance, besides alimony, of $1,000 for the payment of counsel fees and other expenses in making her defense. That allowance the plaintiff paid.
After the report of the referee the plaintiff moved for judgment thereon, and the defendant moved for a further allowance to pay her expenses, including counsel fees incurred in the defense of the action, and all plaintiff's proceedings were stayed until her motion could be heard and determined.
In her moving papers the defendant did not claim that she needed any allowance to oppose plaintiff's motion for judgment; but her sole claim was that she needed it to pay expenses theretofore incurred, and for that purpose the court at Special Term granted an allowance of $3,500. Upon appeal by the plaintiff to the General Term, the order of the Special Term was modified by reducing the sum allowed to $2,500, and as thus modified it was affirmed. The allowance was not claimed at any time nor granted upon the ground that it was necessary to enable the defendant to carry on her defense to the action.
We think the allowance was unauthorized. The authority to make such an allowance, during the pendency of the action, rests entirely upon the statute (Code, § 1769), which provides that *Page 405 the court may, during the pendency of the action, "from time to time, make and modify an order or orders requiring the husband to pay any sum or sums of money necessary to enable the wife to carry on or defend the action." The purpose of the statute is to furnish the wife means to carry on her action or to 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 which has already been made, or solely to pay expenses already incurred.
There is ample power in the court to make allowances from time to time to enable a wife to carry on her defense, and when she needs money for that purpose she must apply for it. But if she has succeeded in making her defense from her own means, or upon her own credit, she cannot, before judgment, while the action is pending, have an order compelling her husband to pay such expenses; and there is no statutory authority in the court to make such an order, and thus to compel him to pay her debts. We confine our decision to the precise facts of this case as they appear in the record. We have no doubt that an allowance to a wife during the pendency of the action, for some past expense, might be authorized if it were shown that its payment was necessary to enable her to further carry on the action or her defense thereto.
The orders of the Special and General Terms should be reversed and motion denied.
All concur, except RUGER, Ch. J., and DANFORTH, J., dissenting.
Ordered accordingly. *Page 406