N. Y. Rep.] Opinion of the Court, per O'BRIEN, J. pose of ascertaining the value of the property taken by the defendant from the land and stating the account between the parties. In the condition in which the record comes here the only question of law presented is the right of the plaintiffs to maintain the action. Of course it is well understood that one tenant in common, in possession of the entire estate, is not liable to his cotenants for the use of the common property, or to account to them for rents and profits, and if this case is governed by that rule the judgment in favor of the plaintiffs is manifestly erroneous. But it is equally clear that one tenant in common may maintain an action against his cotenant in possession for waste (Code, § 1656), or for damages for a sale or conversion of the joint property, if it be personal. (Davis v. Lottich, 46 N. Y. 393.) The term waste, when applied to a tenant in common, for life or for years, has a very extensive meaning. It includes the opening of new mines upon the land to procure and carry away metals, coal, gravel, stone or the like. So taking away the soil is waste, even though the purpose is to convert it into bricks for sale, and it has been held that a tenant in common who quarries. stone from the common property is guilty of waste. So, also, is the taking of petroleum by one of the joint owners from the common property. Waste need not consist of loss of market value. It may be an actionable injury in the sense of destroying identity. The cases and authorities on this subject will be found collected in a recent work. (Rawle's Bouv Law Dic. vol. 2, p. 1216.) The stone which the defendant quarried and converted to his own use was a part of the freehold and, therefore, was the common property of all. It was not, in any proper sense, the product of the land, but was part of the land itself. It did not represent the use of the land or the rents and profits, but to the extent that it was taken by the defendant operated as a diminution of the estate. If the defendant had taken valuable timber from the land and sold it or converted it into lumber, there is no doubt, we think, that he would be liable to account for its value to his cotenants. The act of taking timber and the act of taking stone, whether it be trap rock or marble, cannot be differentiated so far as the question of waste is concerned. Whether the stone which the defendant quarried upon the land and converted to his own use be considered personal property or part of the realty, he was bound to account to his cotenants for their proportion of its value. (Knobe v. Nunn, 151 N. Y. 506; McCabe v. McCabe, 18 Hun, 153.) We think that the judgment must be affirmed, with costs. PARKER, Ch. J., GRAY, HAIGHT, MARTIN, LANDON and WERNER, JJ., concur. Judgment affirmed. THOMAS C. HIGGINS, Appellant, v. GERTRUDE S. SHARP, ACTION TO ANNUL A MARRIAGE - POWER OF SUPREME COURT TO GRANT ALIMONY AND COUNSEL FEES. The Supreme Court, in an action against a wife to annul a ceremonial marriage, has, in a proper case, as an incident to its jurisdiction to entertain the action, power to grant alimony and counsel fees pendente lite, although the provisions of the Code of Civil Procedure (S$ 1742 et seq.) authorizing and regulating actions to annul a marriage are silent as to alimony and counsel fees. Higgins v. Sharp, 51 App. Div. 611, affirmed. (Argued June 6, 1900; decided October 2, 1900.) APPEAL, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, made April 14, 1900, affirming an order of Special Term awarding to defendant a counsel fee and alimony pendente lite. The nature of the proceeding, the question certified and the facts, so far as material, are stated in the opinion. Edward W. S. Johnston for appellant. No authority is to be found in the statutes of this state justifying the court in an action for annulment of a marriage awarding alimony and coun N. Y. Rep.] Opinion of the Court, per O'BRIEN, J. sel fees pendente lite. (Code Civ. Pro. § 1769.) The court has award alimony and counsel fees in an no inherent power to action for annulment of a marriage. (Bartlett v. Bartlett, Clarke's Ch. 322; North v. North, 1 Barb. Ch. 241; Meo v. Meo, 18 N. Y. S. R. 270; Lee v. Lee, 4 Civ. Pro. Rep. 321; Blinks v. Blinks, 5 Misc. Rep. 193; Ramsden v. Ramsden, 28 Hun, 285; Bloodgood v. Bloodgood, 59 How. Pr. 42; Griffin v. Griffin, 47 N. Y. 134; Peugnet v. Phelps, 48 Barb. 566; Erchenbrach v. Erchenbrach, 96 N. Y. 456.) The court cannot award alimony and counsel fees pendente lite where the woman in her answer only denies knowledge or information sufficient to form a belief as to whether her admitted representations of inducement were false and nowhere asserts the validity of the marriage, and in response to her petition for such alimony and counsel fees the man produces indisputable and undisputed proof that at the time of such marriage ceremony she was the wife of another man. (McGown v. McGown, 19 App. Div. 368; Bell v. Bell, 4 App. Div. 527; Matter of Kimball, 18 App. Div. 320; Davis v. Davis, 2 Misc. Rep. 549; Hamilton v. Hamilton, 26 Misc. Rep. 336; Forrest v. Forrest, 2 Edm. Sel. Cas. 180; Matter of House, 40 N. Y. S. R. 286; People v. Baker, 76 N. Y. 78; O'Dea v. O'Dea, 101 N. Y. 23; Cross v. Cross, 108 N. Y. 628.) A. E. Lamb for respondent. The Supreme Court has power to grant a wife alimony and counsel fee in an action to annul her marriage as an incident to its jurisdiction to entertain such an action. (North v. North, 1 Barb. Ch. 241; Griffin v. Griffin, 47 N. Y. 134.) The power possessed and exercised by the Supreme Court as successor of the Court of Chancery was not abridged by section 1769 of the Code of Civil Procedure. (O'Dea v. O'Dea, 31 Hun, 441; Lee v. Lee, 4 Civ. Pro. Rep. 312; Isaacson v. Isaacson, 3 Law Bul. 73; Davis v. Davis, 75 N. Y. 221.) O'BRIEN, J. The order from which this appeal was taken awarded to the defendant counsel fee and a weekly allowance Opinion of the Court, per O'BRIEN, J. [Vol. 164. as alimony during the pendency of the action. The action was brought by the plaintiff to annul a ceremonial marriage. with the defendant, entered into in this state on the 19th day of June, 1894. It appears from the pleadings and papers used upon the application in which the order was made that the defendant was married in the state of Ohio in December, 1888, to one Frederick H. Sharp; that in 1891 she instituted an action against him in the Court of Common Pleas of that state for an absolute divorce. The summons in the action was served upon the husband by publication and by mail at Brooklyn in this state where, it seems, he then resided or was found. In May, 1892, the court entered a decree dissolving the marriage, and it seems to be conceded that this judgment was authorized by the laws of that state and is there held to be valid. The defendant then married the plaintiff in this state as already stated. The plaintiff now alleges that the defendant represented to him that she was legally divorced from her former husband, but that such representations were false and fraudulent, and made for the purpose of influencing him to contract the marriage in question; that, relying upon the truth of her representations, he did consent to the marriage and the ceremony was performed. These allegations were denied by the defendant in her verified answer, except the fact of the ceremonial. marriage to the plaintiff, which she insists is valid. The defendant stated in her petition or application to the court, which was duly verified, that she was destitute of the means of support pending the action, or for carrying on her defense. and defraying the costs and expenses attending the same. The plaintiff by his complaint, not only asks to annul the marriage, but to set aside and declare void the transfer of certain property to the defendant, made by him at the time. It is somewhat difficult to say whether the basis of the action is fraud, or the incapacity of the defendant to contract the marriage by reason of the fact alleged that at the time of the ceremony the prior marriage to Sharp was in force. The N. Y. Rep.] Opinion of the Court, per O'BRIEN, J. complaint is silent as to some facts that would seem to be material, considering the peculiar form of the action. It is not stated when he discovered the fraud, or whether he cohabited with the defendant after the discovery, or whether the husband by the former marriage was alive at the commencement of the action. The issues made by the pleadings indicate that there are questions of importance in the case that must be tried and determined before the plaintiff will be entitled to judgment. The order granting the allowance to the defendant was not appealable to this court as matter of right, but the court below has allowed an appeal and certified to us the following question which constitutes the basis of our jurisdiction: "And this court hereby certifies to the Court of Appeals that a question of law has arisen herein, which, in the opinion of this court, ought to be reviewed by the Court of Appeals, and that such question of law is: Has the Supreme Court in an action against a wife to annul a ceremonial marriage, in which action the wife by her answer only asserts the validity of the marriage, power to grant alimony and counsel fee pendente lite?" We understand this question to involve only the power of the court, in an action to annul a marriage, to grant alimony and counsel fee pending the suit. If it calls for an opinion with respect to the mode of proving the necessary facts, or the degree of proof necessary in such cases, that is scarcely a question of law. All applications of this character made to the court should be considered with reference to what appears to be the merits of each case, and granted or denied in the exercise of a sound discretion. It is scarcely necessary to say that in an action against a woman to annul a marriage alleged to be void from the beginning, it should appear that she is defending its validity in good faith upon some reasonable or substantial ground. The mode of proving the facts and the degree of proof that should be required, as well as the general merits of the application, are matters so largely in the discretion of the court of original jurisdiction that it is not |