In the Matter of the Application of Alice A. Brown Haworth for an Order Modifying a Decree of Divorce in an Action in which Clay Brown was Plaintiff and Alice A. Brown, Defendant. Clay Brown, Appellant; Alice A. Brown Haworth, Respondent

In the Matter of the Application of Alice A. Brown Haworth for an Order Modifying a Decree of Divorce in an Action in which Clay Brown was Plaintiff and Alice A. Brown, Defendant. Clay Brown, Appellant; Alice A. Brown Haworth, Respondent. Judgment for divorce —if entered before 1895 it cannot be amended as to the custody of a child—a motion for that purpose, where made. The court has no power to modify a judgment of absolute divorce entered in November, 1894, which awarded the custody of a child of the marriage to the plaintiff, by giving the custody of such child to the defendant, as section 1771 of the Code of Civil Procedure, as amended in 1895, giving the court authority to modify such a judgment, is applicable only to judgments rendered after the amendment went into effect. Semble, that a motion to modify such a judgment is governed by section 769 of the Code of Civil Procedure, and cannot be made in a county which is not in the same judicial district as the county in which the venue was laid or the decree was entered and which does not adjoin such county. Appeal by Clay Brown from an order of the Supreme Court^ made at the Erie Special Term and entered in the office of the clerk of the county of Cortland on the 3d day of January, 1900, directing the reference of an application made by Alice A. Brown Haworth for an order modifying a decree of divorce; also from an order made at the Erie Special Term and entered in the aforesaid clerk’s office on the 14th day of December, 1899, nuno fro tuno as of the 20th day of January,T899, directing that the order entered in said clerk’s office on the 18th day of July, 1899, permitting Alice A. Brown Haworth to apply for the modification of the decree and the affidavits on which the same was made be filed in said clerk’s office nuno fro tuno as of the 20th day of July, 1899; and also from an order, made at the Erie Special Term and entered in said clerk’s office on the 24th day of May, 1900, denying the plaintiff’s motion to vacate the order of reference theretofore granted and resettling such order. Lewis Bouton, Riley Champlin and Irving H. Palmer, for the appellant. George N. Bauder, for the respondent. [MAJORITY — Kellogg, J.:] Kellogg, J.: An action for divorce absolute on statutory grounds was brought by Clay Brown against the applicant here, Alice A. Brown. The venue was laid in Cortland county where plaintiff resided and still resides. The final judgment therein and decree of divorce was entered in Cortland county in November, 1894. The decree of divorce awarded the custody of the child to plaintiff, Clay Brown. This application is made to modify that decree and give the custody of the child to the defendant in that action, Alice A. Brown, now, by subsequent marriage, Alice A. Brown Haworth. Counsel for the applicant claims that section 1771 of the Code of Civil Procedure authorizes this application; in this we think he is ' in error. This section of the Code before its amendment in 1895 did not authorize such an application after the entry of the final decree. That the section as amended giving, authority to the court to so modify a final judgment is not retroactive and is applicable only to judgments rendered after the amended act went into effect, is distinctly held in Walker v. Walker (155 N. Y. 77). That was an application to increase the alimony fixed in the final judgment. The power in the court to fix alimony and determine the custody of children of the marriage and have the final decree express its determination was declared by this section 1771 before amendment, but no power was given to thereafter modify the same in either respect. And Walker v. Walker (supra) disposes of all arguments based upon the inherent power of the Supreme Court over its decrees in such cases. I see no distinction between the exercise of power in disposing of the custody of a child and the power to provide for its maintenance or the maintenance to the wife. It is the duty of the court to determine, both by final decree or by other orders made before the final decree. The judgment in this case was entered before the amended section 1771 went into effect, and hence the application to modify the ■decree in respect to the custody of the child cannot stand on that amendment. If the application could be entertained on any grounds, the motion to modify the decree made in Erie county was improperly ■entertained over the objection of counsel representing the plaintiff in that action. Erie county is not in the judicial district in which the venue was laid or the decree was entered, nor does it adjoin Cortland county. I think section 169 must govern all applications of this nature. The orders appealed from should be reversed, with ten dollars costs and disbursements. All concurred, except Chase, J., not sitting. Order reversed, with ten dollars costs and disbursements.