CHASE, J.

The power of the court to require a husband to pay a sum of money to his wife to enable her to carry on or defend an action between them affecting the marriage relation is either derived from the statute (Code Civil Procedure, § 1769) or it is incidental to the statutory jurisdiction to entertain such actions. ( Jones v. Brinsmade, 183 N.Y. 258.) Said section 1769 provides that "Where an action is brought, as prescribed in either of the last two articles, (for divorce or for a separation) the court may, in its discretion, during the pendency thereof, from time to time, make and modify an order or orders, requiring the husband to pay any sum or sums of money necessary to enable the wife to carry on or defend the action, * * * having regard to the circumstances of the respective parties * * *." In either case the power of the court to make such an allowance is dependent upon the necessity therefor. ( Collins v. Collins, 80 N.Y. 1; S.C., 71 N.Y. 269; Poillon v. Poillon, 75 App. Div. 536; Osgood v. Osgood, 2 Paige, 621; Rose v. Rose, 11 Paige, 166; McCarthy v. McCarthy, 137 N.Y. 500; Atherton v. Atherton, 82 Hun, 179.)

On the first appeal to this court in the Collins case it was said that "Where the facts are such that, on general principles of equity, a plaintiff is not entitled to demand alimony, the question becomes one of law, reviewable in this court." (P. 271.) (See Jones v. Brinsmade, supra.) On the second appeal to this court in that case it was said that "The fact that a wife is destitute of means to carry on her suit and to support herself during its pendency is as essential as any other fact, to authorize the court to award temporary alimony. This is not mere matter of discretion, but a settled principle of equity." (P. 13.)

In Osgood v. Osgood the court in substance say that if the wife has in her hands property sufficient to pay the expense of the suit the husband should not be called upon personally to advance anything more until that is exhausted; and in Rose v. Rose, where it appeared in an action by the wife against her husband that he had by voluntary arrangement between them secured to her one-half of his property for the use of herself and two children, it was held that she was not entitled to an allowance for alimony or for the purpose of carrying on the suit until she either surrendered or offered to surrender the voluntary settlement made upon her by her husband.

When the wife in a matrimonial action asks the court for an allowance for counsel fees, the burden is upon her to establish the facts which entitle her to it. If a wife has money under her control which she is entitled to use sufficient to carry on or defend such an action the settled principles of equity will not permit the court to direct the husband to pay to her any further sum of money pursuant to an order. The necessity for the payment to enable her to carry on or defend the action is an essential legal basis for the order The plaintiff on this motion does not allege that it is necessary that she should be allowed a counsel fee to enable her to proceed with the motion and there are no facts alleged by her from which such a conclusion can be drawn. She has intentionally or otherwise omitted any statement specially relating to that subject. Her only reference to her property and income is in a paragraph in her petition in which she states that the personal property transferred to her by her husband pursuant to the agreement mentioned does not exceed in value the sum of $100, and she then further alleges: "That aside from said furniture and the $2,000 provided by said agreement and the $10 per month directed to be paid by the defendant for the support, maintenance, care, medical attention and necessary expenses of the infant child Helen, which is entirely insufficient as deponent has ascertained by actual experience in connection therewith, deponent has no means of support for herself or said infant, and as a means of livelihood is now engaged in carrying on a boarding house in the village of Salem, N Y"

The statements mentioned were made in connection with her claim that the amount allowed to her in the agreement with her husband was insufficient. Whether the proceeds of her boarding house gives to her a surplus income does not appear. She has in her possession the $2,000. If she succeeds in setting aside the decree of divorce and agreement she will, nevertheless, so far as appears, continue to have in her possession $2,000 of the defendant's money. If she should pay counsel fees therefrom, and succeed in vacating the judgment, the court would protect her in the reasonable use of such money. If she should not succeed in vacating the judgment and agreement, the money used from such $2,000 would have been rightfully used by her from her own property. This application is wholly within her control, and if the defendant should pay her the amount as provided by the order there is nothing to prevent her abandoning the motion immediately thereafter. The record does not show any necessity for the order sufficient as matter of law to uphold it.

There is another reason why the order for counsel fees should not have been made. Such an order must primarily rest upon the existence of the relation of husband and wife. Unless that relation is sustained by the parties there is no basis for the order. Even in an action brought by the wife to annul a marriage upon a cause which goes to the legality of the marriage originally, the allegations of the wife will be taken against her as true, and an allowance to her to maintain the action will be denied. ( Jones v. Brinsmade, supra.) The final judgment in this case wholly separates the parties and dissolves the relation of husband and wife, and it has been entered and no appeal has been taken therefrom. The action is not pending. We may assume, perhaps, that if a motion is made in an action to set aside a judgment entered therein by reason of some irregularity or fraud affecting the jurisdiction of the court over the parties or the subject-matter, that the incidental power of the court over matrimonial actions and parties might, when a necessity therefor is shown, justify an order for counsel fees. In such a case a wife could consistently insist that the marriage relation had not been dissolved. Where a judgment is absolutely void for want of jurisdiction it is a form merely and does not affect the substantial relation between the parties. The facts disclosed on this motion do not admit of a claim on the part of the plaintiff that she is now the wife of the defendant. The court had jurisdiction of the parties and of the subject-matter and the judgment entered is not void but binding upon the parties and upon the court so long as it remains undisturbed. The application of the plaintiff to have the judgment set aside can only be granted if at all by reason of a fraud wholly apart from anything relating to the jurisdiction of the court but simply relating to the inducement which led the plaintiff to bring the action. It is not a case that comes within the language of the statutory provision relating to counsel fees and the relation of husband and wife being wholly severed the court has no inherent jurisdiction to award counsel fees as an incident to its general statutory jurisdiction in matrimonial actions.

The order, so far as appealed from, should be reversed, and the question certified answered in the negative.

CULLEN, Ch. J., EDWARD T. BARTLETT, VANN, WERNER, WILLARD BARTLETT and HISCOCK, JJ., concur.

Order reversed.