of any child of the marriage, born or begotten before the commencement of the action, is not affected by the judgment dissolving the marriage. § 1155. Maintenance and support of wife and children in action for divorce by wife. The court, in the final judgment dissolving the marriage in an action for divorce brought by the wife, may require the defendant to provide suitably for the education and maintenance of the children of the marriage, and for the support of plaintiff, as justice requires, having regard to the circumstances of the respective parties; and, by order, upon the application of either party to the action, and after due notice to the other, to be given in such manner as the court shall prescribe, at any time after final judgment whether heretofore or hereafter rendered, may annul, vary or modify such a direction. But no such application shall be made by a defendant unless leave to make the same shall have been previously granted by the court by order made upon or without notice as the court in its discretion may deem proper after presentation to the court of satisfactory proof that justice requires that such an application should be entertained. § 1156. Property rights in action for divorce by wife. If, in an action for divorce brought by the wife, when final judgment is rendered dissolving the marriage, the plaintiff is the owner of any real property, or has in her possession or under her control any personal property or thing in action which was left with her by the defendant or acquired by her own industry or given to her by bequest or otherwise, or if she is or thereafter may become entitled to any property by the decease of a relative intestate, the defendant shall not have any interest therein, absolute or contingent, before or after her death. Where final judgment in such an action is rendered dissolving the marriage, the plaintiff's inchoate right of dower in any real property of which the defendant then is or was theretofore seized is not affected by the judgment. § 1157. Legitimacy of children in action for divorce by husband. Where the action for divorce is brought by the husband, the legitimacy of a child born or begotten before the commission of the offence charged is not affected by a judgment dissolving the marriage; but the legitimacy of any other child of the wife may be determined as one of the issues in the action. In the absence of proof to the contrary, the legitimacy of all the children begotten before the commencement of the action must be presumed. § 1158. Property rights in action for divorce by husband. A judgment dissolving the marriage, in an action for divorce brought by the husband, does not impair or otherwise affect the plaintiff's rights and interests in and to any real or personal property which the defendant owns or possesses when the judgment is rendered. Where judgment is rendered dissolving the marriage, the defendant is not entitled to dower in any of the plaintiff's real property or to a distributive share in his personal property. § 1159. Modification of judgment or order in action for divorce brought by wife. Where an action for divorce is brought by a wife, and a final judgment of divorce has been rendered in her favor, the court, by order upon the application of the defendant on notice, and on proof of the marriage of the plaintiff after such final judgment, must modify such final judgment and any orders made with respect thereto by annulling the provisions of such final judgment or orders, or of both, directing payments of money for the support of the plaintiff. § 1160. Insurance upon dissolution of marriage. Whenever the relation of husband and wife ceases by the entry of a judgment dissolving the marriage, the defendant guilty of adultery is not entitled to any interest in any policy of insurance on the life of the plaintiff wherein such defendant is named as a beneficiary, and the plaintiff may apply to the court granting the final decree or to a special term of the supreme court on notice to the defendant or the attorney who appeared for defendant in the action for divorce, and to the insurance company issuing the policy or policies, for an order directing the insurance company issuing the policy or policies to substitute therein such beneficiary as the plaintiff may nominate. In a case where it is shown that the defendant has contributed from his or her separate estate toward the payment of the premiums on such policy, the court shall grant such order on such terms as in the discretion of the court shall be equitable. This section shall also apply in like manner when the defendant obtains a decree against the plaintiff on a counterclaim. V. SEPARATION. Civil Practice Act. (L. 1920, ch. 925.) ARTICLE LXIX. Action for a Separation. Section 1161. Action for separation; when maintainable. 1162. Action for separation; conditions attached to maintenance. 1163. Defense in action for separation. 1164. Maintenance of wife and children in action for separation. 1165. Judgment for separation may be revoked. § 1161. Action for separation; when maintainable. In either of the cases specified in the next section, an action may be maintained by a husband or wife against the other party to the marriage to procure a judgment separating the parties from bed and board, forever, or for a limited time, for either of the following causes: 1. The cruel and inhuman treatment of the plaintiff by the defendant. 2. Such conduct on the part of the defendant towards the plaintiff as may render it unsafe and improper for the former to cohabit with the latter. 3. The abandonment of the plaintiff by the defendant. 4. Where the wife is plaintiff, the neglect or refusal of the defendant to provide for her. § 1162. Action for separation; conditions attached to maintenance. Such an action may be maintained in either of the following cases: 1. Where both parties are residents of the state when the action is commenced. 2. Where the parties were married within the state and the plaintiff is a resident thereof when the action is commenced. 3. Where the parties, having been married without the state, have become residents of the state, and have continued to be residents thereof at least one year; and the plaintiff is such a resident when the action is commenced. § 1163. Defense in action for separation. The defendant in an action for separation from bed and board may set up, in justification, the misconduct of the plaintiff; and if that defence is established to the satisfaction of the court, the defendant is entitled to judgment. § 1164. Maintenance of wife and children in action for separation. Where an action for separation from bed and board is brought by the wife, the court, in the final judgment of separation, may give such directions as the nature and circumstances of the case require. In particular, it may compel the defendant to provide suitably for the education and maintenance of the children of the marriage and for the support of the plaintiff, as justice requires, having regard to the circumstances of the respective parties. And the court, in such an action, may render a judgment compelling the defendant to make the provision specified in this section where, under the circumstances of the case, such a judg ment is proper, without rendering a judgment of separation. § 1165. Judgment for separation may be revoked. Upon the joint application of the parties, accompanied with satisfactory evidence of their reconciliation, a judgment for a separation, forever, or for a limited period, rendered as prescribed in this article, may be revoked at any time by the court which rendered it, subject to such regulations and restrictions as the court thinks fit to impose. VI. ALIMONY AND SUPPORT. Civil Practice Act. (L. 1920, ch. 925.) ARTICLE LXX. Matrimonial Actions; Provisions Applicable to Two or More. Section 1166. Residence of married woman in action for divorce or separation. 1167. Notice of nature of matrimonial action, when required and proof thereof. 1168. Counterclaim in action for divorce or separation. 1169. Alimony and expenses in action for divorce or separation. 1170. Custody and maintenance of children, and support of plaintiff in action for divorce or separation. 1171. Security for payments by defendant in action for divorce or separation; sequestration. 1172. Enforcement by contempt proceedings of judgment or order in action for divorce or separation. 1173. Costs in action for divorce or separation. 1174. Judgment in matrimonial action must be rendered by court. 1175. Interlocutory judgment in action to annul a marriage or for divorce. 1176. Final judgment in action to annul a marriage or for divorce. § 1166. Residence of married woman in action for divorce or separation. If a married woman dwells within the state when she commences an action against her husband for divorce or separation, she is deemed a resident thereof, although her husband resides elsewhere. § 1167. Notice of nature of matrimonial action, when required and proof thereof. In an action to annul a marriage or for divorce or for separation, a judgment shall not be rendered in favor of the plaintiff upon the defendant's default in appearing or pleading, unless either the summons and a copy of the complaint were personally served upon the defendant, or the copy of the summons delivered to the defendant, upon personal service of the summons, or delivered to him without the state, or published, pursuant to an order for that purpose, contains the following words, or words to the same effect, legibly written or printed upon the face thereof, to wit: "Action to annul a marriage;" "Action for a divorce;" or "Action for a separation;" as the case may be. §1168. Counterclaim in action for divorce or separation. Where an action for divorce or separation is brought by either husband or wife, a cause of action for divorce or separation against the plaintiff and in favor of the defendant may be interposed in connection with a denial of the material allegations of the complaint, as a counterclaim. § 1169. Alimony and expenses in action for divorce or separation. In an action for divorce or separation, the court, in its dis cretion, during the pendency thereof, from time to time, may make and modify an order or orders requiring the husband to pay any sum or sums of money necessary to enable the wife to carry on or defend the action, or to provide suitably for the education and maintenance of the children of the marriage, or for the support of the wife, having regard to the circumstances of the respective parties. § 1170. Custody and maintenance of children and support of plaintiff in action for divorce or separation. Where an action for divorce or separation is brought by either husband or wife, the court, except as otherwise expressly prescribed by statute, must give, either in the final judgment, or by one or more orders, made from time to time before final judgment, such directions as justice requires, between the parties, for the custody, care, education, and maintenance of any of the children of the marriage, and where the action is brought by the wife, for the support of the plaintiff. The court, by order, upon the application of either party to the action, or any other person or party having the care, custody and control of said child or children pursuant to said final judgment or order, after due notice to the other, to be given in such manner as the court shall prescribe, at any time after final judgment, may annul, vary or modify such directions, or in case no such direction or directions shall have been made, amend it by inserting such direction or directions as justice requires for the custody, care, education and maintenance of any such child or children in such final judgment or order or orders. But no such application shall be made by a defendant, or any other person or party having the care, custody and control of said infant or infants, unless leave to make the same shall have been previously granted by the court by order made upon or without notice as the court in its discretion may deem proper after presentation to the court of satisfactory proof that justice requires that such an application should be entertained. (Amended by L. 1921, ch. 199.) § 1171. Security for payments by defendant in action for divorce or separation; sequestration. Where a judgment rendered or an order made in an action in this state for divorce or separation, or a judgment rendered in another state for divorce upon the ground of adultery, or for separation or separate support and maintenance for any of the causes specified in section eleven hundred and sixty-one of this act, upon which an action has been brought in this state and judgment rendered therein, requires a husband to provide for the education or maintenance of any of the children of a marriage, or for the support of his wife, the court, in its discretion, also may direct him to give reasonable security, in such a manner and within such a time as it thinks proper, for the payment, from time to time, of the sums of money required for that purpose. If he fails to give the security, or to make any payment required by the terms of such a judgment or |