Sanford v. Sanford , 42 N.Y. St. Rep. 1 ( 1891 )

Per Curiam.

In 1888 the 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 § 59, tit. 1, ch. 8, pt. 2, Revised Statutes [2d ed.], 154 (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 The section has been repealed by ch. 245, Laws of 1880, with saving provisions. And it is argued that section 3 of the repealing act saves from the effect of repeal cases like the present. The 1st 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 action of Erkenbach v. Erkenbach, 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 clearly applicable that it is not to be deemed that there was any adjudication as to subdivision 2, that provides that the repeal “ does not affect any other lawful act done, or right, defence or limitation lawfully accrued or establisted 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 ten dollars costs.