Sanford v. Sanford , 1891 N.Y. Misc. LEXIS 622 ( 1891 )

Per Curiam.

In 1888 the plaintiff began this action for divorce a vinculo, and obtained judgment. The judgment provided that the defendant pay certain money for the support and education of children of the marriage. In 1891 the application below was made for an order that the defendant pay-further money for the support of the children. It is admitted that the respondent was entitled to the order only if section 59, tit. 1, c. 8, pt. 2, Rev. St. (2d Ed.) marg. p. 148, is to be applied to the case. That section would permit the making of such an order after judgment. The section has been repealed by chapter 245, Laws 1880, with saving provisions; pud it is argued that section 3 of the repealing act saves from the effect of repeal cases like-the present. The first subdivision declares that the repeal does not render ineffectual or otherwise impair any proceeding in an action or special proceeding had or taken pursuant to law before this act takes effect. This action was begun in 1888. The actions of Erkenbrach v. Erkenbrach, 96 N. Y. 463, and Washburn v. Catlin, 97 N. Y. 623, were begun before the repealing act of 1880. There was no intimation of the particular subdivision of section 3 that saved the proceedings, but the first subdivision was so cl early-applicable that it is not to be decreed that there was any adjudication as to-subdivision 2 that provides that the repeal “does not affect any other lawful act done, or right,-defense, or limitation lawfully accrued or established, before this act takes effect.” Neither the respondent nor the children had any right within the meaning of the section. The section means, not a general or political right, but something which may be enjoyed, and as to which facts exist which give a present right of enforcement. At the time of the repealing act the children were not entitled to the support they claimed under the application below. By presumption the defendant had fulfilled his duties, and there was no right of action against him.

The order should be reversed, and the motion below denied, with $10 costs.