What is the test for an order for counsel fees in an action to annul a marriage?

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, 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[194 N.Y. 186]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.

Order reversed.