Opinion
July, 1916.
The plaintiff obtained an interlocutory judgment declaring the marriage contract between him and the defendant void and annulling the marriage. The cause is that her prior marriage with another man was in force at the time of the ceremony. Final judgment has not been entered. The time fixed for its entry by section 1774 of the Code of Civil Procedure has not arrived. Her attorney avers she has instructed him to appeal from the interlocutory judgment. She says she is without funds to prosecute the appeal. She moved for counsel fee for that purpose. From the order granting that motion this appeal is taken. Were the final judgment entered the application would be baseless. ( Lake v. Lake, 194 N.Y. 179.) It is not now necessary to determine the power of the court to make the award to prosecute an appeal from the interlocutory judgment. In an action to annul a ceremonial marriage the power, if it exists, is not statutory, but incidental. It is to be exercised as a matter of sound discretion. ( Higgins v. Sharp, 164 N.Y. 4.) Assuming that an appeal lies to this court from the interlocutory judgment, we do not deem it proper, without cogent proof of merit, to award counsel fee to prosecute such an appeal. There is no such proof in the moving papers. The order should be reversed and motion denied, without costs. Jenks, P.J., Thomas, Carr, Stapleton and Putnam, JJ., concurred. Order reversed and motion denied, without costs.