May 23, 1924.
Leslie J. Schuyler, for the appellant.
Harry B. Lewis, for the respondent.
The action is for an absolute divorce. The referee found in defendant's favor on the issues. The court at Special Term denied her motion to confirm and granted a new trial. No allowance for counsel fees or expenses in defending had been made. The plaintiff on a previous motion for such relief had pleaded his inability to pay. That motion was denied with leave to renew. This motion was for leave to examine plaintiff and others as to his ability to pay, and for an allowance.
As the action stood at that time, we think the order should have been granted. Defendant had taken an appeal to this court from the order denying confirmation of the referee's report ( Nottingham v. Nottingham, No. 1, 209 App. Div. 459) and that would involve considerable expense. ( McBride v. McBride, 119 N.Y. 519.) Defendant was confronted with the necessity of a new trial, if her appeal should be unsuccessful. She had been put to a large expense in defending a vague charge dating back nearly nine years, and further expenses were inevitable, unless she abandoned her defense, which was not to be expected unless for lack of means she was compelled so to do. The plaintiff had not contributed to her support for several years. There was a prospective necessity for counsel fees and expenses. ( Tranter v. Tranter, 189 App. Div. 714; Beadleston v. Beadleston, 103 N.Y. 402, 405; McBride v. McBride, 53 Hun, 448; appeal dismissed, 117 N.Y. 624.)
The procedure she adopted to test the truth of plaintiff's claim of poverty was proper. ( Harding v. Harding, 203 App. Div. 721; affd., 236 N.Y. 514.)
The appeal from this order was brought on for argument at the same time as her appeal from the order denying confirmation of the referee's report. We have decided the latter appeal, reversing the order and directing judgment in her favor. There is now no action pending and no necessity for an examination as to the ability of plaintiff to pay. Provision for expenses and counsel fees is authorized only while the action is pending, and may not be made for past expenses incurred in its defense. (Civ. Prac. Act, § 1169; Beadleston v. Beadleston, supra; Winkemeier v. Winkemeier, No. 1, 11 App. Div. 199; Poillon v. Poillon, 75 id. 536.) This action is, or soon will be, at an end.
The appeal should be dismissed, without costs.
Appeal from order entered April 23, 1924, dismissed, without costs.