Truax, J.— Title 1 of chapter 15 of the Code of Civil Procedure is substantially the same as articles 1, 2, 3, 4 and 5, of title 1, chapter 8, part 2, of the Eevised Statutes. Alimony and counsel fee were allowod the wife in an action to annul a marriage, and when the action was brought by the husband while those portions of the Eevised Statutes were in force. In North agt. North (1 Barb. Ch., 241), the *220chancellor said : “ The provisions of the Eevised Statutes are the subject of allowance to the wife to enable her to carry on the suit is confined to suits brought for a divorce or separation, and does not. in terms extend to the allowance of ad interim alimony even in those cases. But the allowance does not depend wholly upon the statute, but upon the practice of the court as it existed prior to the enactment of the Eevised Statutes.” This case was cited with approval by the court of appeals in Griffin agt. Same (47 N. Y., 137), and Brinkley agt. Same (50 M. 7., 190). In the last case the principle upon which alimony and counsel fee were allowed was stated as follows: “ When an actual marital relation has been admitted or shown, and its existence in law is sought to be avoided by some facts set up by the husband, and it devolves upon him to show that fact, alimony will be granted until that fact is shown.”
Alimony of five dollars per week and a counsel fee of twenty-five dollars is awarded.