FIRST DEPARTMENT, APRIL TERM, 1903. [Vol. 82. "The court may, in the final judgment dissolving the marriage, 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 may 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, 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." Prior to this amendment there was no statutory authority in this State for modifying a decree of alimony on the application of the husband subsequent to its rendition, which is quite significant in determining the legislative intent. Under section 5 of chapter 102 of the Revised Laws of 1813 the court was authorized to vary the alimony "from time to time," but this provision was omitted from the Revised Statutes (2 R. S. 145, § 45), and there was no authority since to change the alimony after a decree of divorce was entered until the amendment of subdivision 2 of section 1759 of the Code of Civil Procedure made by chapter 728 of the Laws of 1894. It is to be borne in mind that courts have no inherent authority to grant divorces or award alimony or modify such an award, and on these subjects they exercise such authority only as is conferred by the Legislature. (Erkenbrach v. Erkenbrach, 96 N. Y. 461; Kamp v. Kamp, 59 id. 212; Livingston v. Livingston, 74 App. Div. 261; affd., 173 N. Y. 377; Walker v. Walker, 155 id. 77.) It will be seen that early in the history of the State the Legislature vested the courts with authority to modify the amount of alimony from time to time after a decree of divorce, but that from 1830 until 1894 no such authority was conferred. The provision of the Revised Statutes already cited, conferring authority upon the court to allow alimony, was "to provide such suitable allowance to the complainant for her support as the court shall deem just, having regard to the circumstances of the parties respectively." The phraseology of the Code provision on this subject, which super App. Div.] FIRST DEPARTMENT, APRIL TERM, 1903. * * * seded the Revised Statutes, is somewhat different, but in effect the same, it being "to provide suitably for the support of the plaintiff, as justice requires, having regard to the circumstances of the respective parties." (Laws of 1880, chap. 178, § 1759, subd. 2.) The "circumstances of the parties," as used in these statutory provisions with reference to the original decree, is quite comprehensive, and related not only to the pecuniary cir cumstances and the requirements of the parties in view of the manner in which they had lived, but also authorized and required a consideration of the conduct of each; and if the wife was to some extent responsible for the misconduct of the husband, or in fault, although this did not justify his acts, yet it might be considered in determining the amount of alimony that she should receive. (2 Am. & Eng. Ency. of Law [2d ed.], 126-136, and cases cited; Peckford v. Peckford, 1 Paige, 274; Bedell v. Bedell, 1 Johns. Ch. 604.) If the wife, however, be herself guilty of adultery, it is the policy of the law that she shall not be awarded a decree of divorce or alimony. It is, therefore, not reasonable to suppose that the Legislature intended by this provision that such misconduct on the part of the wife was to be taken into consideration in determining the award of alimony, for the decree proceeds on the theory of her innocence of infidelity. The decree is an adjudication of the facts bearing on the plaintiff's right to alimony which were litigated and those which might have been litigated as well. supra; Stannard v. Hubbell, 123 N. Y. 520; 3 id. 511, 522; Griffin v. L. I. R. R. Co., 102 id. 449, 452; Mersereau v. Mersereau, 51 App. Div. 461.) It was, of course, subject to review and reversal on appeal, but it could only be effected by motion if seasonably made upon a proper showing of fraud or mistake, or of newly-discovered evidence. (Livingston v. Livingston, 46 App. Div. 18; Hauscheld v. Hauscheld, 33 id. 296; Mersereau v. Mersereau, supra.) This motion does not fall within any of these classes. The defendant does not seek to vacate or set aside the judgment of divorce. He, in effect, asks for a new trial of the incidental question relating to the amount of alimony on the ground of newly-discovered evidence of a character which would not only have defeated the award of alimony, but the decree as well. (Kamp v. Kamp, Embury v. Conner, FIRST DEPARTMENT, APRIL TERM, 1903. [Vol. 82. The alimony allowed by decree of divorce becomes a vested property right and may not be affected either by subsequent events or legislation. (Livingston v. Livingston, 74 App. Div. 261; affd., 173 N. Y. 377.) For this reason the amendment to this subdivision and section of the Code made by chapter 742 of the Laws of 1900, although in terms retroactive and perhaps somewhat broader in that it authorizes an annulment of the award of alimony, has no application to this decree which was previously made and its effect need not be considered or determined. The court could have decreed a divorce and reserved the question as to alimony for future determination. (Galusha v. Galusha, 138 N. Y. 272; Hauscheld v. Hauscheld, supra.) It may be conceded that the Legislature could, as to future decrees, have authorized such relief on the application of the husband, but in determining whether this was contemplated by the Code amendment of 1895, in force at the time the decree was made, it must be borne in mind that this is an extremely unusual, if not unheard of, proceeding in our jurisprudence and we must also consider whether it is opposed to our public policy. The language of the amendment does not necessarily require such construction; nor does it follow that on such a motion the court may consider all the elements that might have been considered originally. It may, we think, be given full force and effect by ascribing to the Legislature the intention of authorizing the courts to vary or modify the allowance of alimony from the time of the adjudication that such variation or modification is proper without making the same retroactive. If the annulment or modification is to relate back to the time of the decree, then the divorced woman might be liable for the excess of alimony received in the meantime. There seems to be no propriety in readjudicating the question of alimony as of the date of the decree where the decree is permitted to stand as a judgment of divorce. Where alimony is allowed in the decree, without any reservation of a right of modification, it should be conclusively presumed, while that decree stands, that the court has considered all the material facts and that the adjudication was made with reference thereto. The time for proving facts such as it is sought to show under the amended order of reference, was before the decree of divorce. The custody of the innocent children is supposed to be awarded to an innocent mother; but if after this status App. Div.] FIRST DEPARTMENT, APRIL TERM, 1903. is established by the decree of divorce the husband is to be permitted to make motions from time to time for a modification of the award of alimony based upon alleged misconduct of the wife prior to the decree, both the mother and the children will be scandalized. The legitimacy of the issue of the marriage would in the eye of the law be established by the decree; but if the father is to be permitted to show misconduct of the mother previous to the decree, the full benefit of the presumption of their legitimacy may not be given by the public. It does not appear that there was issue of this marriage, but we cannot have one rule where there are children and another where there are not, under the same statutory provision. It is also the policy of the law that the wife, upon the rendition of a decree of divorce in her favor, shall not only be free from all obligations to the husband but from all annoyance or meddling in her affairs by him. The rule contended for by the respondent, if adopted by the court, would place the wife under the surveillance of the husband and subject her to endless molestation and annoyance. By persistent inquiry into her private affairs or causing her to be shadowed by detectives she might, though innocent, to avoid the embarrassment attendant upon attempts on the part of her former husband to subject her to shame and disgrace, consent to a modification or abandonment altogether of her claim to alimony. We have been referred to some decisions in other jurisdictions indicating that facts occurring prior to the decree of divorce may be subsequently inquired into for the purpose of readjusting the alimony, but they are based upon statutes quite different from ours and are of no value in determining the public policy of our own State on a subject upon which the public policy of the different States widely differs. It has been held in this State in a well-considered opinion that immorality of the former wife subsequent to the decree affords no ground for withholding alimony. (Forrest v. Forrest, 3 Bosw. 661.) As has been observed, the statute afforded no remedy to the husband for a modification of the decree as to the amount of alimony until 1895 and prior to that time the only remedy afforded was to the wife. We think that full force and effect may be given to this legislation by confining the inquiry in the main, if not exclusively, to facts and circumstances tending to show a change in the fortune, FIRST DEPARTMENT, APRIL TERM, 1903. [Vol. 82. income or necessities or requirements of the parties since the granting of the decree and that this was the object of the amendment. But whether or not this is the limitation of the right of inquiry in all cases need not be determined, for in any event the decree cannot be opened in part only; and upon the past conduct of the plaintiff the defendant has had his day in court and the interests of society are superior to any private grievance he may now have and forbid the reopening of the question in this manner. It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. VAN BRUNT, P. J., INGRAHAM, MCLAUGHLIN and HATCH, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. FRANK B. HAWKINS and GEORGE H. HAWKINS, Respondents, v. MAPES-REEVE CONSTRUCTION COMPANY and THE AMERICAN BONDING AND TRUST COMPANY OF BALTIMORE CITY, Appellants. Mechanic's lien - notice thereof in New York, when filed with the department of public works-right, where the lien is invalid, to a personal judgment — trial by jury-failure to demand it- - a bond which conformed to a repealed statute, enforced a plea of defect of parties must specify the defect when the city need not be made a party to an action to enforce a lien against it — assignment of the claim before the lien is filed-effect thereof on the action. -- Under section 12 of the Lien Law (Laws of 1897, chap. 418) a notice of a mechanic's municipal lien for work done in the erection of a hospital on Gouverneur slip in the city of New York, the construction of which was authorized by chapter 703 of the Laws of 1894, as amended by chapter 399 of the Laws of 1895, must be filed with the department of public works of the city of New York. Section 3412 of the Code of Civil Procedure, which provides, "If the lienor shall fail, for any reason, to establish a valid lien in an action under the provisions of this title, he may recover judgment therein for such sums as are due him, or which he might recover in an action on a contract against any party to the action," may be given effect without depriving the parties of their constitutional right to a jury trial in case the validity of the lien is not established, |