On this motion made at the foot of the decree, for alimony for the support of two infant children, pursuant to the provisions of the decree that such application could be made, the justice at Special Term decided the issue of the legitimacy of one of the children raised by conflicting affidavits. The impropriety of assuming to pass upon an issue so important in this informal manner is obvious. Apart, however, from the manner in which the issue was raised, the matter was res adjudicata. The complaint in the action alleged “ that there is issue now living of the said marriage between the plaintiff and the defendant,” and names the two children as such issue. This was found as a fact by the court in its decision, and the decree provides that the custody and care of the issue of the marriage, meaning the two children, be awarded to the plaintiff and that she might make future application to the court for alimony and for the support of the issue of the marriage. While this decree remains the question of the legitimacy of these children cannot be presented for judicial investigation by the parties to this action.
The order should, therefore, be reversed, with ten dollars costs and disbursements, and the matter remanded to Special Term for such action as may be deemed proper.
Clarke, P. J., Laughlin, Dowling and Page, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and the matter remanded to the Special Term for such action as may be deemed proper.