I agree with the chief judge that this appeal should be sustained. In the absence of any provision of our statutes, which authorizes an award of alimony and of counsel fee, when the action is brought to annul the marriage between the parties, and conceding to the court the authority to make such, as being incidental to its jurisdiction to entertain the action, it seems to me very clear that the power cannot, with any legal propriety, be exercised in such a case as this.
I am for asserting the rule that, where the wife, as here, declares her marriage to have been null and, for that cause, seeks to have the marriage contract adjudged to have been void, she has no more an equitable ground, than she has a legal reason, for demanding that the defendant's estate be charged with her support. When she is in the position of asserting the validity of her marriage and is defending its validity, she may, consistently, invoke the power of the court to compel a provision for her maintenance and defense, until the action *Page 264 has determined the relations of the parties, and, while I did not take part in the decision of Higgins v. Sharp, I recognize it as authority upon this proposition and no further.
O'BRIEN, BARTLETT, HAIGHT, VANN and WERNER, JJ., concur.
Ordered accordingly.