And we may here repeat Professor Tiedeman's court, in violation of article I, section 6 of the Constiquestion found in his work on Police Powers: tution, as depriving the plaintiff of her property with'But would the infliction of capital punish-out due process of law, and confers no power upon ment for offenses not involving the violation of to reduce the amount of alimony so the right to life and personal security, be such awarded, although the plaintiff has subsequently remarried and has a husband who is able to provide a cruel and unusual punishment as that it for her support. would be held to be forbidden by the constitutional provision?"

LIVINGSTON V. LIVINGSTON (s. c. 27 N. Y. L. J. 1377). and, according to her testimony before the referee,

SUPREME COURT, APPELLATE DIVISION, THIRD DEPART- maintenance, education and support the whole of the

be paid by this judgment. Upon this application the court reduced the alimony from $4,000 to $3,000 per

year.

The application was made under subdivision 2 of section 1759 of the Code of Civil Procedure, as amended by chapter 742 of the Laws of 1900, and the material question presented is whether this section of the Code, so far as it applied to judgments entered before the section was amended, is in violation of the Constitution. At the time this judgment was entered the Code provided that in an action for a divorce when the action is brought by the wife "the court may, in the final judgment dissolving the marriage, require the defendant to provide suitably for the education and maintenance of the children of the marriage, and for the support of the plaintiff, as justice requires, having regard to the circumstances of the respective parties" (subdiv. 2, sec. 1759, Code Civ. Pro.), and that in an action for a divorce or separation "where an action is brought by either the husband or wife * * * the court must give either in the final judgment * * * such directions as justice requires between the parties for the custody, care and education of any of the children of the marriage. Where the action is brought as prescribed in article 3 of this title (for a separation) the court may by order at any time after final judgment annul, vary or modify such direction" (sec. 1771); and sections 1772 and 1773 provide for the enforcement of such a judgment.

In this judgment of divorce there was no provision reserving the right of the court thereafter to modify its provisions; nor did the statute in force when the judgment was granted authorize the court to modify a judgment making provision for the custody, education and maintenance of the children of the marriage, or for the support of the wife, in an action for divorce. It is now settled that the courts of this State have no common-law jurisdiction over the subject of divorce, and the authority of the court to decree a divorce and to make provision for the support of the wife and the education, maintenance and support of the children is confined to the exercise of such express and incidental power as is conferred by statute (Walker v. Walker, 155 N. Y. 77). While there is a distinction between a judgment rendered by a court to enforce a contract or to determine the ownership of property, and the provision of a judgment requiring the husband to support, maintain and educate his children and support his wife in an action for a divorce, as to the method of enforcement of the judgment and the application of the money required to be paid thereby, the obligation imposed by such a provision in a judgment in an action for a divorce is based upon the legal obligation assumed by the husband on his marriage. By the contract of marriage the husband assumes certain pecuniary obligations recognized by the common law. He is liable for the support of his wife, and any one furnishing necessaries for her support has a legal cause of action against the husband; and he is also legally liable for

the support, maintenance and education of his chil-
dren during their minority. When the State author-
izes the severance of the relations entered into be-
tween the parties to a marriage contract, it provides
that the person under this obligation must make
provision for its performance (Romaine v. Chauncey,
129 N. Y. 566). By the judgment of divorce, this
obligation of the father and husband is determined.
He is no longer bound to provide a home for his
family, or liable to those who furnish necessaries for
his wife and children, his sole obligation being re-
duced to the payment required to be made by the
judgment (People ex rel. Comm'rs of Charities v.
Cullen, 153 N. Y. 636). "His duty is continued, and
is measured and fixed by the decree" (Wetmore v.
Wetmore, 149 N. Y. 529). The husband thus obtains
by the judgment an advantage by which the obliga-
tion that he had assumed upon entering into the mar-
riage is "fixed and measured," so that no further
obligation for the support of his wife and children
can be imposed upon him (Kamp v. Kamp, 59 N. Y.
220). The court would undoubtedly have the right
to reserve by the judgment power to modify its pro-
vision, and thus the right of the wife and children
to the support provided for by the judgment would
be subject to such modification as the court should,
under the power thus reserved, determine from time
to time to be proper. But where no such power was
reserved in the judgment and the judgment becomes
absolute, fixing definitely the amount that the hus-
band is to pay in lieu of the obligation that he had
assumed upon his marriage and which existed at the
time the judgment was entered, no matter what in-
crease there might be in his income or property,
neither the wife nor the children could obtain any
larger sum for their support than that provided for
by the judgment, nor could the husband open up the
question as to the amount to be paid so as to reduce
it because his income had been reduced (Kamp v.
Kamp, supra; Walker v. Walker, supra). The sum
of money fixed by the judgment in such actions,
whether to be paid in one gross sum or in annual
installments, is thus determined by the judgment to
be the amount to be paid by the husband and father
to discharge this existing obligation, and is a distinct
obligation imposed by the judgment upon him, by the
discharge of which he is relieved of the obligation
for which he was theretofore liable.

Under the Code of Civil Procedure as it existed at the time this judgment was entered, there was no distinction as to the power of the court to modify the judgment between a provision for the support of the wife and one for the education and maintenance of the children.

Prior to the enactment of the Code of Civil Procedure, section 59 of chapter 8, part 2, title 1, article 3 of the Revised Statutes provided that in an action brought for a divorce or for a separation, the court may, "during the pendency of the cause, or at its final hearing, or afterward, as occasion may require, make such order as between the parties for the cus

ing obligation upon the defendant, with no power reserved to the court to modify it.

In what respect does this differ from an obligation to pay a sum of money each year in consideration of the transfer to the obligor of a piece of property? It is a judicial determination of the amount required to be paid by a person upon whom there is by law a liability, and in the discharge of that liability. It vests in the plaintiff the right to receive this money in discharge of the father's and husband's obligation to support his wife and children. By the judgment awarding the custody of the children to the wife there was imposed upon her the obligation before placed upon the husband for the support and education of the children and for her own support; and, as a part of the judgment imposing that obligation upon the wife, it is adjudged that the husband shall

tody, care and education of the children of the marriage as may seem necessary and proper, and may at any time thereafter annul, vary or modify such order." Under this provision the Court of Appeals in Erkenbach v. Erkenbach (96 N. Y. 456) held that by expressly authorizing an order modifying a judgment to be made after its entry providing for the care, custody and education of the children of the marriage, it impliedly prohibited the modification of a judgment of divorce in any other particular. Upon the passage of the second part of the Code of Civil Procedure, this provision of the Revised Statutes was repealed, and section 1771 of the Code of Civil Procedure, to which attention has been called, was passed as a substitute therefor. By that section the right of the court to modify a final judgment with directions as to the custody, care and education of the children of the marriage was confined to a judg-pay her this sum of money annually. That a judgment entered in an action for a separation, thus excluding an action for divorce. This modification was significant; and applying the principle that granting authority to modify a judgment in an action for a separation which provides for the care, custody and education of the children, prohibits any modification except that allowed, the legislature had impliedly prohibited the court from modifying a provision contained in a final judgment in an action for divorce either for the custody, care and education of the children of a marriage which was dissolved by such final judgment, or for the support of the wife. The amendment of sections 1759 and 1771 of the Code of Civil Procedure by chapter 891 of the Laws of 1895, giving the court power to annul, vary or modify a direction for the education and maintenance of the children, or for the support of the wife, is a legislative declaration that the law did not, as it existed before the amendment, embrace the provision that the amendment supplied (Matter of Miller, 110 N. Y. 216; Matter of Harbeck, 161 N. Y. 211).

ment requiring a party to pay to another a sum of money is properly within the meaning of the Constitution seems to me to be a self-evident proposition, not denied by any authority to which our attention has been called. This could hardly be denied if it determined the right of a party to an action to specific real or personal property, and it was so held in Gilman v. Tucker (128 N. Y. 203). Where the judgment in express terms adjudges that one party pay to another a sum of money, the party in whose favor the judgment is rendered obtains a right to enforce that judgment, which is a right of property; and that right the plaintiff in this action acquired by this judgment. This right having been thus absolutely assured by a judgment which is unimpeached and unimpeachable, fixing the amount of money that this defendant should pay to the plaintiff in discharge of the legal obligation that he had assumed upon his marriage, became in her hands property which was protected by the Constitution, and which neither the legislature nor the court could deprive her of, directly or indirectly; and this amendment of the Code, which assumes to give to a party to an action which has resulted in a final judgment which had become unimpeachable, a right to apply to have that judgment modified or vacated for a cause not existing at the time the judgment was entered, because if the judg

In the Erkenbach case the power of the court to modify a final judgment in a divorce case providing for the care, maintenance and education of the children, was placed solely upon the ground that, under the provisions of the Revised Statutes in force when the judgment was entered, the court was expressly authorized to modify by an order made after judgment were now. to be entered its provisions would ment the provision therein contained by which the care, custody and maintenance of the children of the marriage were provided for. As, however, by the provision of the Code of Civil Procedure in force at the time the judgment in this action was entered, such power was restricted to a judgment in an action for a separation, the authority for a modification of such a judgment in an action for divorce had been repealed by the legislature, and the general rule stated in Kamp v. Kamp (supra), and which has since been uniformly followed, should, I think, apply. A provision in a final judgment in an action for a divorce directing the payment of a sum of money for the support of the wife, or for the care, education and maintenance of the children, became a bind

be different, indirectly attacks the foundation of the judgment and deprives the plaintiff of rights of property secured to her by it when entered. If this judgment had provided that the defendant, in discharge of his obligation to the plaintiff and her children, should pay a gross sum of money at a particular time, a legislative act annulling that judgment, would, I think, have been void. Instead of a direction to pay a sum absolute, it directs for a specific time that the defendant pay to the plaintiff a fixed sum annually; and I assume it would not be disputed that an act of the legislature directly annulling that judgment would be void. What the legislature could not do directly it could not do indirectly, by authorizing a court to annul such a

*

judgment, and especially would this prohibition apply which the complainant may open the decree for a where the ground of annulment was not a mistake reconsideration and adjudication upon the merits in or an error of the court in pronouncing the judgment, controversy in the suit between the parties. but because of a change in the pecuniary condition of the defendant which has made it inconvenient for him to comply with it.

I think the provision contained in the Constitution referred to secures a person against being deprived of his property, either contingently or absolutely. If the appeal authorized to be taken by the act may result in depriving the defendant of his property, it is in my opinion contrary to the Constitution."

* *

The provision of the Code under which this application was made was added to section 1759 by chapter 742 of the Laws of 1900, and is as follows: "The court may * by order, upon application of either party to the action, and after due notice to the other to be given in such a manner as the court shall prescribe, at any time after final judgment, whether heretofore or hereafter rendered, annul, vary or modify such a direction." We think this provision, so far as it applies to judgments which had become absolute before its adoption, was in violation of the Constitution, and, therefore, void.

It seems to me that this attempt to abrogate or annul the provisions of a judgment legally entered by a court of competent jurisdiction, having jurisdiction over all the parties, because of the happening of events subsequent to the entry of the judgment, is a direct attempt to deprive the plaintiff of property and in violation of section 6, article I of the Constitution, which provides that no person shall be deprived of property without due process of law. The general rule is stated in 6 Am. and Eng. Encyc. of Law, 2d ed., p. 1038: No power exists on the part of the legislature to grant new trials or rehearings, or to authorize the opening of a judgment previously rendered after that remedy under the general law has expired." And on page 1040: "So the legislature cannot confer the right of appeal and trial de novo in It is doubtful in this case whether the application the Supreme Court of a cause wherein no such right should be granted if the court had the power. The existed at the time the decision therein was ren-defendant was a resident of this State, was convicted dered." The cases cited in the notes show that this of a violation of his marital obligation, and was proprinciple has received universal approval in the vari-hibited both by the judgment and the statute law ous States of the Union. It has also been recognized from marrying again during the lifetime of the in the courts of this State. In Gilman v. Tucker plaintiff. Notwithstanding this prohibition, immedi(128 N. Y. 190) Chief Judge Ruger said: "We also think the act violates the constitutional guaranty, because it assumes to nullify a final and unimpeachable judgment, not only establishing the plaintiff's right to the premises in dispute, but also awarding him a sum of money as costs. * * * It not only does this, but it attempts to reverse a judgment and give to a defeated party the fruits of a recovery

awarded to another. We must bear in mind that a

judgment has here been rendered, and the rights flowing from it have passed beyond the legislative power, either directly or indirectly, to reach or destroy. After adjudication, the fruits of the judgment become rights of property. These rights became

vested by the action of the court and were thereby placed beyond the reach of legislative power to affect." In Walker v. Walker (155 N. Y. 77) there is a strong intimation in the opinion that if sections of the Code there under consideration could be held to apply to judgments entered prior to their adoption, they would be, so far as they affected such judgments, unconstitutional, the court saying: "If such an effect was given to them, their constitutionality might well be doubted, as they might affect the vested rights of a party and impair the obligation of contracts." In Burch v. Newbury (10 N. Y. 274) it was held by the Court of Appeals that the legislature had no right to give to a party to an action a right to appeal from a final judgment after that right had expired, as such an act of the legislature was in violation of the principle of article 1, section 6, of the Constitution of this State. The court in that case say: "The act assumes to create the means by

ately after the judgment was entered he went to another State and there violated the prohibition and returned to this State and has lived here from that time to the present. He now comes to the court asking to be relieved from a judgment making a provision which, when made, was proper and consistent with his condition for the support of his lawful wife and children, he claiming that he has assumed new obligations prohibited by law, which require him to apply his income in that direction rather than to the discharge of this judgment. While we recognize that this prohibition has no extraterritorial effect and does not invalidate a marriage in another State legal in the place where it was per

formed, the act of the defendant was clearly one in violation of our law, the law of the State of which he was a citizen and with which he was bound to comply. Nor is there any evidence that the cost of the maintenance and education of their children has decreased since the judgment was entered, and the evidence is undisputed that the amount required to be paid by this judgment is necessary for that

purpose.

It follows that the order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

O'BRIEN and HATCH, JJ., concur.

PATTERSON, J., concurs in result.

MCLAUGHLIN, J. (dissenting)—I think chapter 742 of the Laws of 1900 is constitutional. Whatever power the court has over the subject of divorces, including the power to award alimony, is derived from the legislature and that body can, at its pleasure,

seduction in a suit by the mother of a bastard confirmed by him, yet he entered plaintiff's name as that of the bastard's father — insisting on making the entry unless the mother would consent to its not being done the evidence showed malice, rendering defendant liable under the general statute defining libel. The court said in part:

increase or diminish the power thus given (Walker v. Walker, 155 N. Y. 77). Nor can alimony which has not by the terms of the decree become payable be considered property in the sense in which that term is generally understood. I am also of the opinion that the court very properly, under the facts presented, reduced the alimony here awarded from $4.000 to $3,000 per year. Whatever may be said as The main contention is that the evidence does not to the obligation resting upon a husband to support support the conviction. The facts, in substance, his wife, and as to the propriety of the court, in case show that the mother of the child, accompanied by of a divorce, making suitable provision to that end, the sponsers, presented the child for baptism on the it has no application here. The award in this case 8th of April, 1901; that the baptism occurred, and was made to the wife. She has again married, and a memorandum was taken by the minister at the immediately upon her marriage to her present hus-time, but it was not entered upon the church record band she ceased to be in every sense the defendant's until some time during the month of July following. wife; hence, the reason which existed when the Hearing of the baptism, and the charge made by its alimony was awarded, and which solely induced the mother that prosecutor was the father of the bastard, court to grant it, also ceased (Wetmore v. Wetmore, prosecutor's father approached the minister in 162 N. Y. 503). In contracting that marriage she regard to the matter, and requested him to erase that became the wife of another man, with whom she is portion of the entry from the register which showed now living, and presumably he is discharging the prosecutor to be the father of the child. This legal and moral obligation which rests upon him, viz.: occurred in June-a month before the entry was to support her. According to the moral code, which made by the minister in the church register. Among is universally recognized in civilized countries, one other things, he stated to the minister that his son man is not permitted to support another man's wife. was not guilty of the offense of seduction, nor was It is antagonistic to the marriage relation, ought not he the father of the child. The minister insisted that to be sanctioned by the parties themselves, and, if so, the facts stated by the mother, that prosecutor was ought to be and is condemned by public sentiment in the father of the child, should go upon the record; every case, so far as I am aware, unless supported that he had no authority to change it; that it was by a decree of the court, and in my opinion the court the custom of the church for the minister to make should not sanction an act of this kind which otherthese entries; and that the girl had given prosewise would be universally condemned. Where a wife cutor's name as the father of the child. Appellant's has been awarded alimony for her support, the payment of the same in case of her remarriage should attention was called to the fact (which he seemed to have known anyway) that the imputed father had immediately terminate. Substantially the same argument as here made was made in Wetmore v. Wet-been tried and acquitted of the crime of seduction, more (supra), but the court held that upon the hus-but he insisted upon making the entry, which he did band showing that by reason of a change in his finally about a month later. Appellant himself testifinancial condition he was unable to pay the award fies substantially to the same fact, but said that, if originally made, the Special Term correctly reduced the mother of the child would agree to it, he would not make the entry upon the register charging the imputed father with the paternity of the child. The mother would not agree, and he accordingly made the entry sometime during the month of July. This, perhaps, is a sufficient statement of the case. We are of opinion that the evidence is sufficient. Appellant knew, long before the entry upon the record, of the trial and acquittal of the imputed father on the charge of seduction, but insisted that he had no power to refrain from placing the statement of record imputing its paternity as stated by the mother, and yet agreed, if she would recant her statement, that he would change the record, or, rather, refrain from making the entry. This entry upon the church

the amount awarded.

Notes of Cases.

In

Criminal L.vel-Entry on Church Record. Kubricht v. State, decided by the Court of Criminal Appeals of Texas in June, 1902 (69 S. W., 157), it appeared that the Penal Code of Texas. section 742, provides that when any person, by virtue of his office, is required to record the proceedings of any religious body, he shall not be charged with libel for any entry so made; the following article provides that if a false statement is entered, which would be libelous if circulated by an individual, the one assent-record, naming prosecutor as the father of the child ing to and directing such statement is guilty; and the next article provides that the statements are not to be presumed to have been made with intent to injure unless such fact appears. It was held that where a minister, required by a custom of his church to make entries of the names of parents of those baptized, knew that plaintiff had been acquitted of

occurred after the trial and after the conversations above mentioned. The substance of this testimony is that appellant, knowing the fact that the imputed father had been acquitted of seduction, and having been requested not to make the entry upon the church record and hold him up in the records of the church as the father of a bastard, without just cause