I feel constrained to dissent from the. con elusion reached by my associate.. I think that the amendment, in 1895, to section 1771 of the Code of Civil Procedure should not be construed as retrospective, and if so construed I should have grave doubts as to its constitutionality. The law is settled in this State that a divorce wholly terminates the marital obligations of the parties. Whatever doubt may have been cast on this principle by the opinion in Wait v. Wait (4 N. Y. 95), where it was intimated that the dissolution of the-marriage was not absolute and that it might be considered in continuing force for certain purposes, has been wholly‘dispelled by the-later decisions of the Court of Appeals. In Van Voorhis v. Brint*225nall (86 N. Y. 18) it was held that the prohibition against remarriage by the guilty party in a divorce suit was a mere penalty imposed on him for his fault, and, therefore, had no extra-territorial effect; that the marriage by such a defendant without this State was valid and would be respected within this State. In The Matter of Ensign (103 N. Y. 284) it was held that a divorced wife was-not entitled to a distributive share of the personal estate of her husband, because by the divorce the relation between the parties was wholly abrogated. It was there said by Judge Finch : “ But then came provisions for a dissolution of the marriage contract. In such case the contract is ended and terminated by the decree of the court. The relation of husband and wife, both actiial and legal, is utterly destroyed, and no future rights can thereafter spring out of or arise from it. Existing rights already vested' are not thereby forfeited, and are taken away only by special enactment as a punishment for wrong. But future rights dependent upon the marital relation and born of it there can be none.”
This, also, is the view of- Mr. Bishop, in his work on Marriage and Divorce, though he maintains the doctrine that divorce litigation is exceptional and that an action for alimony may be maintained after a decree of divorce has been obtained. (§ 840, vol. 2.) At the same time, the learned author admits that, contrary to his own view, there is a tendency in some of the States to deem such an application too late, unless saved by statute or by a reservation in the decree. (§ 1076.) That the latter is the rule in this State was definitely determined by the cases of Kamp v. Kamp (59 N. Y. 212) and Erkenbrach v. Erkenbrach (96 id. 456) where it was held that the-court was without power to make an award of alimony subsequent to the rendition of the judgment, and that an order of such a nature was absolutely void, as without jurisdiction. ,
I differ from Mr. Justice Hatch at the very threshold of the discussion of this case. He- is of opinion that as to the innocent wife “ the obligation upon the part of the husband to. support and maintain remains,” and some expressions in the opinions delivered in the cases of Romaine v. Chauncey (129 N. Y. 566) and Wetmore v. Wetmore (149 id. 520) I concede, if construed broadly, 'give support to his claim. But it cannot be accurately said that the duty resting upon the husband to support and maintain was a continuous *226one, surviving the decree, for, from the date of the decree, the defendant was no longer the husband of the plaintiff. Doubtless he did originally assume the obligation to'support the plaintiff during their joint lives, but this was only an incident to his contract of marriage. A. case could easily be imagined of a voidable marriage where, as long as. it existed, the obligation-to support would rest on the husband; but on the avoidance of the marriage, and that through the fault of neither party, the obligation would cease. The-real nature of the provision for permanent alimony is best stated by Judge Finch in The Matter of Ensign (supra): “ When the court. dissolves the marriage contract at the suit of the innocent wife, it is authorized to decree the payment to her of a suitable allowance. And. why is that ? If any marital right continues after the divorce, the wife remains entitled to her support and may enforce it in the ordinary way. On the' contrary, the statute recognizes that when the marriage tie is broken, and the relation ended, no future - rights will rémain to the wife, and no future obligations bind the husband which have their root in the marriage relation. The court is authorized to give by-its decree, in the form of an allowance, a just and adequate substitute for the right of the innocent wife which the divorce cuts off and forbids in the future.” This is the exact point of difference between my associate and myself, He regards the decree as merely measuring and fixing the continuous duty on the part of the defendant to support the plaintiff. I think, as said by Judge Finch, it is a substitute for that duty. In other words, the plaintiff prior to the decree had a right of support; by her divorce she lost that right and in substitution of it acquired a new right, a judgment requiring the payment to her of a specific sum of money. That at the time the judgment was rendered there was no power of the court to subsequently either abrogate, increase or diminish her right to recover a specific sum is unquestioned. I think that subsequent legislation could not operate on that judgment, any more than on any other, judgment for the payment of money; or, at least, that the statute should not be construed retrospectively to affect the vested right.
The order appealed from should-be reversed, without costs.
Order affirmed, with ten dollars costs and disbursements.