146 Misc. 518 | N.Y. Sup. Ct. | 1933
This is an action to recover for legal services rendered to the defendant’s wife in successfully defending a habeas corpus proceeding brought against her by the defendant for the purpose of obtaining custody of the only child of the marriage. In a separate cause of action plaintiffs, as assignees of the wife, seek a judgment for moneys expended by her in connection with said proceeding.
The defendant demands that the complaint be dismissed on various grounds: (1) That the State Constitution protects a person suing out a writ of habeas corpus from charges other than costs taxed in connection therewith; (2) that a husband’s obligation to furnish necessaries for his wife does not extend to legal services performed “ in a proceeding to deprive the husband of the custody of his child;” (3) that a husband who makes provision for his wife, living separate and apart from him, in an amount assented to by her as satisfactory, is not liable for “ necessaries ” furnished to her by others; and (4) that an allowance of alimony in an annulment action previously instituted by the defendant against his wife constituted the exclusive measure of the defendant’s duty of support and precluded the plaintiffs from recovering from the latter for “ necessaries ” furnished by them to the wife.
In addition the defendant disputes the value set upon their services by the plaintiffs and interposes various defenses and counterclaims. These defenses and counterclaims charge that the plaintiffs’ illegal and improper conduct made necessary the defendant’s institution of the habeas corpus proceeding at great expense to the latter; that the plaintiffs knowingly caused a false answer to be interposed in the annulment action and that this answer was used in the habeas corpus proceeding and raised most of the issues tried out in that proceeding; and that the plaintiffs introduced false testimony at the trial of the habeas corpus proceeding, with knowledge of its falsity. Furthermore, the defendant contends that the plaintiffs’ legal services were furnished upon the wife’s credit exclusively and that the husband is, therefore, not hable for their payment.
As to the assigned claim for reimbursement for the wife’s
A short résumé of the litigation between the defendant and his wife will make for a better understanding of the legal points involved, quite apart from its important bearing upon the value to be placed upon the plaintiffs’ services.
The defendant and his wife were married in New York city on April 16, 1923, and continued to reside there until December, 1927, when the defendant left his wife and their child — then almost four years of age — and took up residence in a hotel in Bronxville, Westchester county. In January, 1928, the defendant commenced an action in Westchester county for the annulment of his marriage on the ground that his wife had made false representations as to her legitimacy, her parentage and the moral character of her parents. His complaint also demanded the custody of the child. He was represented by prominent attorneys of New York and Westchester counties, and his wife by the present plaintiffs. After serving her answer, she applied for a counsel fee and her husband joined in the application for a reasonable allowance. The court awarded $7,500. Issues were framed for trial by jury, but the wife, dissatisfied with their form, appealed to the Appellate Division which reframed the issues in the form proposed by the plaintiffs as her attorneys. The husband’s applications for resettlement of the order of the Appellate Division, for reargument and for leave to appeal to the Court of Appeals were denied. In July, 1929, the wife moved for further counsel fees and for temporary alimony. The husband submitted over 200 pages of affidavits in opposition, in which many of the charges were made which are now contained in the defenses and counterclaims in the instant action. The court allowed $3,500 as additional counsel fees and disbursements and $1,250 per month as temporary alimony. It is well to note at this point that the order expressly provided that it did not cover such liability as might rest upon the husband for legal services rendered and to be rendered to his wife in the habeas corpus proceeding (which had been begun after the annulment action and was then pending) and for disbursements accrued and to accrue in that proceeding. The husband’s appeal from this order resulted in an affirmance and his application for leave to go to the Court of Appeals was denied.
Meanwhile, in April, 1928, while the annulment action was awaiting trial in Westchester county, the husband instituted the habeas corpus proceeding previously referred to against his wife for the custody of their child. The venue of the proceeding was
The annulment action came to an end soon thereafter. The husband’s motion to, strike out the answer as sham was denied and a few days later he abandoned the action and agreed not to defend a suit for separation previously commenced by his wife. The stipulation also provided for permanent alimony of $1,000 per month and pursuant thereto a decree of separation was entered in favor of the wife.
The defendant in the present action recognizes the right of
In the case at bar the habeas corpus proceeding was instituted
The defendant’s contention that the State Constitution protects a person suing out a writ of habeas corpus from charges other than costs taxed in connection therewith is as ingenious as it is lacking in judicial precedent to support it. None of the cases referred to by the defendant hold that a husband may put his wife to great expense in successfully defending a habeas corpus proceeding instituted by him without any liability on his part for the legal services rendered to her. In Matter of Teese (32 App. Div. 46) the holding was not, as claimed by the defendant, that the total amount for which the appellant could be held liable was the statutory taxable costs. The reason for reversal in that case was that the costs of the reference assessed against the parent by the lower court were fixed ex parte and without an opportunity on his part to be heard. The order of the Appellate Division remitted the matter to the Special Term “ to take proof as to the aggregate amount of disbursements legally payable to the referee and stenographer under the statute or any stipulation ” and directed that the final order be amended by inserting said amount as a charge against the appellant. The remarks of the court that, “ It would be a reproach to the administration of justice in this State for any court to compel a parent, who had not voluntarily agreed to do so, to pay $3,000 in judicial expenses in order to secure an adjudication upon his claim to the custody of his children,” were directed at the procedure adopted by the lower court in appointing a referee instead of hearing the testimony itself. The question was, however, academic, because the reference had been had upon the consent of the parties. The holding was merely that the parent was nevertheless entitled to be heard on the fixation of the expenses of the reference chargeable against him.
The defendant concedes that costs may properly be assessed in the habeas corpus proceeding. In fact the Court of Appeals ordered him to pay the costs of the habeas corpus proceeding and
It is true, as the defendant urges, that “ if a husband makes provision for bis wife, who is living separate, to an amount to which she assents as satisfactory, he is not liable to persons furnishing her with necessaries.” This principle of law is, however, inapplicable here, since the temporary arrangement between the defendant and his wife — which called for the payment of the latter’s household bills, and, in addition, twenty-five dollars per week — was clearly not intended to cover all of the wife’s expenses. The defendant himself testified that the arrangement was not to include unusual or extraordinary expenses. His conduct in joining in the application for a reasonable counsel fee to his wife in the annulment action confirms this interpretation of the scope of the arrangement. In the circumstances there appears to be no merit in the contention that the wife was obliged to pay her attorneys from the comparatively small allowance received by her from the defendant prior to the order in the annulment action which awarded $1,250 per month as temporary alimony.
It is upon the provisions of this very order that the defendant bases another of his defenses. He maintains that the order definitely and conclusively fixed and determined the measure of his obligation to furnish his wife with necessaries and that, therefore, he is under no independent liability to the plaintiffs. Under
As to the defense that a husband" is not liable for necessaries furnished upon the exclusive credit of his wife, it need only be observed that the proof establishes that the legal services were not rendered in reliance upon the sole credit of the wife.
The claim that there may be no recovery for the wife’s expenditures in the habeas corpus proceeding because there was no proof that the payments were made out of the wife’s separate estate is likewise without merit. The evidence shows that no provision was made by the defendant for the making of such payments and that his wife, therefore, must have paid the disbursements from funds which she had a right to expend as she wished and which, therefore, constitute her “ separate estate.”
There remains for consideration only the value of the plaintiffs’ services. They ask judgment for $100,000, less $4,060.76 received on account, and for the assigned disbursements of the defendant’s wife, amounting to $8,364.76. Taking into consideration the result of their services, the importance of the controversy to their client, the novel and difficult questions involved, the financial circumstances of the defendant, the time necessarily expended in the work, and the skill and proficiency exhibited, the court is of the opinion that the reasonable value of the plaintiffs’ services is $40,000.
The motion to strike out paragraphs 13th to 16th of the reply to the amended answer is granted with an exception to the plaintiffs. In accordance with the stipulation entered into at the commencement of the trial, a verdict is directed in favor of the plaintiffs for $35,939.24, with interest on $10,000 thereof from July 2, 1928, and on $25,939.24 thereof from September 3, 1931, plus $8,364.76, with interest thereon from September 3, 1931, together with the costs and disbursements of this action.