order increasing the amount of alimony, and to strike out certain portions of the decree.

Benno Loewy, for app'lt; Gilbert R. Hawes, for resp't.

BRADY, J.-The scope of the decision of Kamp v. Kamp, 59 N. Y., 212, seems to have been misunderstood by the counsel for the appellant and has led him into errors which have very much enlarged the sphere of this appeal. In that case it was decided, it is true that in an action for a divorce a vinculo the jurisdiction of the court over the subject matter of the action and the parties with respect to all matters involved in it terminates with the entry of final judgment therein, save for the enforcement or correction of the judgment. Therefore if no provision be made in the decree for alimony it is to be presumed that the court decided adversely to the claim of that allowance and the decree is equally final as if such provision had been made. It appeared in that case, it should be noted, that the application was made in a suit terminated by final judgment divorcing the parties a vinculo more than eighteen years before the proceeding was instituted, and therefore was regarded without precedent and without jurisdiction. And it followed as a matter of course that the order which was complained of, being made without jurisdiction, was utterly void and unavailable for any purpose, a doctrine which could be set up collaterally or otherwise and therefore could be employed upon a

motion.

That case is entirely different from this. The court in pronouneing judgment herein declared that if the plaintiff should survive the defendant or any other event should occur materially changing the circumstances of the parties, or either of them, an application might be made at the foot of the order, decree and judgment by any party in interest for such modifications of the judgment touching the said allowance for support, as might be just, in view of any right, title and interest in or claim to the estate, real or personal, of the said Richard Stahl which might then have accrued to her, by act and operation of law, or in view of any such other

event.

The reservation of this right of supervision being a part of the original decree, was designed to continue the subject to which it related within the jurisdiction of the court, and was in effect a continuation of the power of the court over the subject and the parties, and was not as to alimony a final judgment. In that respect, therefore, it differed from the judgment considered in the case just cited, and is in no respect kindred to it.

The counsel for the appellant is also in error in supposing that the amount of alimony established by the final decree cannot be enlarged by the consent of the defendant, as was done in this action, and which presents, therefore, an entirely different feature from that of Kamp v. Kamp, in which the application was made for an increased allowance and opposed by the defendant. This is not a case or proceeding in which the court had no jurisdiction; on the contrary, it had jurisdiction of the subject-matter and of the parties, and preserved it by the decree to which reference has

been made. The consent was, therefore, abundantly sufficient to enlarge the allowance. It was germane to the subject and within the line of the reservation of power mentioned.

This view disposes of a number of suggestions contained in the brief of the appellant's counsel, and among others that the court had no power in the final decree to provide for execution against the person of the defendant for the alimony therein ordered to be paid. That having been part of the original decree, could be taken advantage of only by appeal. If the defendant were arrested, however, in a proceeding against him for the non-payment of alimony, it would be one in the nature of a contempt. The statutory requirements thereof could not be dispensed with notwithstanding the decree, and, therefore, upon that particular subject the decree was of no practical utility. It neither inured to the benefit of the plaintiff nor to the disadvantage of the defendant. Whatever methods are provided for the enforcement by imprisonment for the non-payment of the alimony ordered must be adopted, no matter what the nature of the decree may be, and orders relating to it being unauthorized, might doubtless, under the decision in Kamp v. Kamp, supra, be disregarded, and, therefore, in reference to such a subject are wholly immaterial.

It is not important either to consider the suggestion of Justice Andrews as to the effect of § 1487 of the Code in relation to proceedings for the non-payment of alimony ordered by the decree, inasmuch as the proceeding itself, as already suggested, would be controlled by the provisions of the Code relating to the subject, and which must necessarily be invoked and complied with in any such proceeding. It may be remarked here that in the different points presented by the counsel for the appellant the decision in the case of Kamp v. Kamp has been arrayed as an authority sustaining the doctrine advanced in each, but, as we have seen, that case is not applicable here for the reason that the order in reference to the alimony complained of was made authoritatively, and, therefore, not without jurisdiction.

Out of a multitude of points presented on behalf of the appel lant, one alone seems to be forcible, and that is that granting an ex parte application for process against the person of the defendant for non-payment of alimony was not authorized by law and could not be sustained, even when based on a decree which provides that an application may be made ex parte for such process if the defendant fails to obey its mandates. The application, under such circumstances, must necessarily rest upon the affidavit of the plaintiff or her attorney as to the non-payment of the alimony. That, however, is not conclusive evidence, though prima facie sufficient to warrant an order to show cause, and does not become so until after the return of the order and the omission of the party proceeded against to deny or explain. Aside from these considerations, it does not appear that any execution or process against the person of the defendant had been issued herein and the motion which resulted in this appeal was, therefore, premature. Non constat that any process would be issued except in the mode provided by law; and the object of the proceeding would seem

to be, as suggested in the papers presented on behalf of the plaintiff, to enable the defendant to come into this jurisdiction and remain here for such time as he might safely do so in expectation of a hostile proceeding in reference to alimony.

It must also be suggested that the defendant made the application out of which this appeal grew by his attorney when his client, was designedly and it may be said unjustifiably out of the jurisdiction, nevertheless the proceedings were entertained, the counsel for the appellant supposing erroneously that as all the proceedings complained of were irregular according to the decision in Kamp v. Kamp, and the right proclaimed by that case to dispose of the various objectionable features of the judgment roll and of the proceedings complained of by motion, he could proceed in that mode without waiting for the return of his client to our jurisdiction or the attempted enforcement of anything hostile against his client. It is a striking illustration of what misconception of an adjndication and its doctrines may lead to in its attempted application to a particular case embracing features and elements without its purview, and, therefore, uselessly employed.

It may be said in conclusion that the following expression with regard to the merits of this case indulged by the learned justice presiding in the court below has a fitting place here: I am not called upon in deciding this motion to express any opinions as to the merits of the controversy which has been going on between the plaintiff and the defendant for several years; but I may say that, so far as appears by the papers before me, the defendant is not entitled to any special consideration at the hands of the court. The decree was made after a long hearing and adjudged that the defendant had been guilty of adultery and granted a divorce to the plaintiff. The decree and subsequent order, made, as above stated, upon the written consent of the defendant and his then attorney, awarded alimony to the plaintiff, and it is conceded that a large part of such alimony has not been paid; and it is claimed that the defendant is able to pay the same, but has left and remains out of this state to avoid the process of the court. Being in contempt of the decree and order of the court, he is not in a very good position to ask the court to exercise extraordinary and doubtful powers in his behalf.

For these reasons the order appealed from should be affirmed, with ten dollars costs.

VAN BRUNT, P. J., and DANIELS, J., concur.

In the Matter of the Petition of JACOB LORILLARD et al, Com'rs.

(Supreme Court, General Term, First Department, Filed January 13, 1891.) 1. CONSTITUTIONAL LAW-TITLE OF ACT-LAWS 1890, CHAP. 249.

Chapter 219, Laws of 1890, gave full power to commissioners to take lands for the Washington bridge in New York. Section 2 declared that upon an application for that purpose such proceedings should be had as are provided for the acquisition of real estate by chap. 490, Laws of 1883 (aqueduct act.) Held, that § 2 did not violate § 17, art. 3 of the state constitu

tion, which declares that no existing law can be made part of an act to be passed unless inserted therein.

2. EMINENT DOMAIN-BRIDGES-NEW YORK CITY.

Said § 2 did not, however, provide the manner in which the application should be made. Held, that this was legal business of the city and under chap. 410, Laws of 1882, § 215, its conduct was made the duty of the law department of the city; and that it was substantial error to allow it to be carried on by any person other than the corporation counsel.

APPEAL by the mayor, etc. of the city of New York, from an order appointing three commissioners or appraisers to ascertain and determine the compensation to be made to the owners and others interested in parcels of land to be acquired under chap. 249 of the Laws of 1890.

David J. Dean, for app'lt; James C. Carter, A. B. Johnson and H. D. Hotchkiss, for resp'ts.

DANIELS, J.-The first important objection taken to the legality of the proceedings which resulted in the appointment of the commissioners of appraisement, is that 82 of chap. 249 of the Laws of 1890, so far as it has prescribed the mode of proceeding to be taken and followed in obtaining title to these lands, is a violation of and in conflict with § 17 of art. 3 of the constitution of this state. This section went into effect on the first of January, 1875, and has since formed a part of the constitution of this state.

It has declared that "No act shall be passed which shall provide that any existing law or any part thereof shall be made or deemed a part of said act, or which shall enact that any existing law, or any part thereof, shall be applicable, except by inserting it in such act."

And the position taken upon it in support of the appeal is that the direction declaring that, "Such proceedings shall be had upon such application, except that the same shall be in the first judicial district, as are provided for the acquisition of real estate by chapter four hundred and ninety of the Laws of eighteen hundred and eighty-three, and with like effect, and all payments for the real estate so acquired, and for the charges and expenses of acquiring the same, shall be made in the manner in which such payments are to be made and out of moneys therefor to be raised as provided in the said last-mentioned act," is in conflict with this part of the constitution.

The act in this manner referred to was enacted to provide new reservoirs, dams and a new aqueduct, to supply the city of New York with an increased amount of water. And by sections 6 to and including 22 of that act, the proceedings were prescribed which should be followed to acquire title to and make compensation for the lands required for the work thereby authorized. And all that was designed by this part of § 2 of the act of 1890 was that the same proceedings should be taken and followed, and the compensation in like manner provided and made, to acquire the title to the lands to be obtained by these commissioners. There are eight parcels of these lands, and the commissioners' right to acquire title to them has only been denied in case this section of the act of 1890 is in conflict with § 17 of article 3 of the constitution

of the state, and if the proceedings to obtain that title have been regularly instituted.

Since this section was made a part of the constitution of the state, very similar acts have, from time to time, been enacted by the legislature. And where they have not been silently acquiesced in, this form of legislation has been maintained by the courts. The facts that this exercise of legislative power has been so generally uncontested, with its frequent repetition, are circumstances indicating the correctness of the conclusion that there is no such conflict between this form of legislation and the constitution as will require this law to be condemned. For the existence of this legislative practice, assented to as it practically has been on the part of the public for a series of years, are indications of the general conviction that it does not infringe upon this restraint of the constitution. People, etc. v Dayton, 55 N. Y., 367, 377–8.

To invalidate an act of the legislature because it transcends the restraint of the constitution, a conflict between them must be clearly found to exist. "Every presumption is in favor of the validity of legislative acts, and they are to be upheld unless there is a substantial departure from the organic law." People v. Briggs, 50 N. Y., 553, 558. And it has been added that "proper respect for a co-ordinate branch of the government requires the courts of the United States to give effect to the presumption that congress will pass no act not within its constitutional power. This presumption should prevail unless the lack of constitutional authority to pass an act in question is clearly demonstrated." United States v. Harris, 106 U. S., 629, 635.

That the legislature violated this restraint of the constitution in the enactment of so much of the act of 1890 as has now been drawn in question, has certainly not been exhibited with this degree of clearness. For it has neither been provided in this part of the act that so much of the law of 1883 shall be made a part of it, nor has it been enacted that any part of that act shall be applicable to it. But all that has been provided for is that the proceedings for the acquisition of the title to the lands required for public use by the act of 1883, and for the compensation to be made to the owners, shall be followed in acquiring the lands now proceeded against. The authority to acquire the title is wholly provided by the act of 1890. And it is only to indicate the course of proceeding to be followed to obtain that title that this reference is made to the act of 1883.

In all respects, the authority of the commissioners has been created and provided by the act of 1890, but it is to be carried into effect through the course of proceeding otherwise provided for by the other act. The latter act regulated the practice, while the act of 1890 created the authority to proceed under that practice. And that this form of legislation was not in violation of, or in conflict with, this part of the constitution was held in People v. Banks, 67 N. Y., 568.

It is true that the similar reference contained in the act then before the court was to a general law of the state, while here it is N. Y. STATE REP., VOL. XXXVI. 30