5 Misc. 2d 955 | N.Y. Sup. Ct. | 1957
This is an action for a separation. An order was made by this court (Markewich, J.) awarding temporary alimony and counsel fees to the plaintiff wife. Insofar as that order applied to counsel fees it stated: “ The defendant shall pay to the plaintiff as and for a partial counsel fee only, the sum of $1,750, the balance, if any, of such counsel fee to be fixed by the Trial Justice”. The defendant duly delivered, to the plaintiff’s attorney, a check for $1,750, payable to the plaintiff, as directed by the order. As the plaintiff was dissatisfied with the alimony allowance, she refused to indorse the check in her attorney’s possession, discharged him, engaged new counsel and moved for substitution of attorneys and to
The plaintiff now moves before me for an order directing the defendant to pay this sum of $935.71. The plaintiff’s application is vigorously opposed by her husband. The former attorney has been permitted by me to intervene on this motion. He is neutral as to the source of payment, but payment he insists upon; and he is particularly aggrieved that the plaintiff refuses to indorse the $1,750 check to him (unless he accept that amount in full payment of his lien), and that the defendant refuses to recall that check and execute a new one directly to him. Efforts on my part (made on the argument) to have the parties and the attorneys settle the controversy as to the payment of fees and delivery of the papers were unsuccessful, and, since the cause is shortly to come to trial in this court (Gold, J.), I have been asked to dispose of the pending motion. (Parenthetically, at this point, I suggest perusal of Silverman v. Rogers Imports, 4 Misc 2d 672, and of Grobman v. Freiman, 3 Misc 2d 656.) The briefs of the parties have not cited, and extended research has failed to produce, any case precisely in point. I turn, therefore, to a consideration of the several arguments presented by counsel.
It is elementary that a person has a right to be represented by counsel of his own choice, and that he may change attorneys at any time with or without cause. (Holder v. New York City Tr. Auth., 4 Misc 2d 10.) And that is, of course, as true in a matrimonial action as in any other. In the instant case, the
Up to now, there has not been, as suggested by the plaintiff, a modification of the original award of counsel fee pendente lite. There was never a motion to modify that order throughout all of this litigation — the only matter before the court was a motion to direct a substitution and to fix the former attorney’s lien. “ There was ample power to increase the award, if thereafter it appeared to be inadequate. * # * But until increased, the award was final ” (Turner v. Woolworth, 221 N. Y. 425, 428). And plaintiff seeks an increase now.
While it is not unusual for additional allowances to be made the wife for counsel fees because of added professional labors on appeal (Rodgers v. Rodgers, 124 N. Y. S. 2d 211), the argument that the plaintiff is now entitled to a favorable modification (Civ. Prac. Act, § 1169) of the pendente lite order because of the likelihood of additional services being required as a result of the change of counsel, or because of the definitive fixation of the first attorney’s fee, does not appeal to me. The allowance for counsel fee is awarded the wife for the prosecution of her action or maintenance of her defense — not to the attorney for the wife. The court fixes the counsel fee to be paid by the husband in a matrimonial action, in pursuance of section 1169, on the basis of merits of the wife’s action, probability of success, need, capacity to pay and other circumstances — but not including the potentiality or the actuality of voluntary
The motion is denied.