(dissenting). The judgment of separation gave the custody of the child to the wife and awarded her permanent alimony. In making that award the duty of the court to take into consideration the expense of maintaining the child was too plain to be overlooked and it cannot be assumed that it was ignored. If for any reason the award of alimony was found inadequate the court which made the decree was expressly given unrestricted power to modify or amend it at any time. Indeed even though provision for the support of the child had been entirely omitted the court was given the power to supply the omission by amendment. (Civ. Prac. Act, § 1170.)
The cases cited in the prevailing opinion from the reports of our own State are, in my judgment, not at all in point. They all arose under foreign decrees over which our courts possessed no power of amendment or modification. In one of them the child had not been born when the decree was made. In the others the decisions rested on the hypothesis that no provision had been made in the decrees for the maintenance of the children. In the case before us we are dealing with a judgment of our own Supreme Court and with our own statute which gives that court unlimited and exclusive power of modification and amendment. And, as already shown, there is no room for the assumption that the court failed in its duty to provide for the maintenance of the child when it made the award of alimony to the mother.
*763There is nothing in the opinion of the Court of Appeals in Swanton v. Curley (273 N. Y. 325) in any way in conflict with the view I have taken in the present case. There the decree of divorce expressly provided for the support of the child by the husband. The wife claimed that he had failed to make the required provision and she brought an action at law for the moneys she claimed to be due under the terms of the divorce decree. Of course, it was held that such an action might be maintained. The wife was not required to resort to proceedings to punish her husband for contempt.
But in the case before us there is no suggestion that defendant has failed in complete performance of the terms of the separation decree. The claim is that the decree made no provision at all for the support of the child; and a judge and jury of the Municipal Court are to be asked to supply that supposed deficiency by awarding a money judgment to the wife.
In my opinion the judgment must be held to have made the provision which the court thought proper, and which it was his duty to make, for the support of the child. But even if the terms of the decree could be thought ambiguous, I do not consider that their meaning should be left to be passed upon by a jury in a court of common law. If there was error or omission in the decree, or if for any after-occurring reasons it required amendment, our statute has provided the best method of reaching a proper result by application to the court by which it was made. That remedy is available in the case of all domestic decrees and where so available it should be held exclusive.
In a case which appears to me so plain I do not think it profitable to discuss the decisions in other jurisdictions which in no event could control our determination.
The order denying plaintiff’s motion for summary judgment should be affirmed.
The order denying defendant’s cross-motion for summary judgment should be reversed, with ten dollars costs, and the motion granted, with ten dollars costs.