137 N.Y.S. 1071 | N.Y. App. Div. | 1912
The plaintiff, as the assignee of Mr. Bacon, sues for legal services and money advanced to Mrs. Woolworth while she was the wife of Herbert Gr. Woolworth. The services, as alleged, were rendered in the successful defense of the wife in an action for absolute divorce brought by the husband, wherein Bacon acted as counsel; for the successful prosecution as attorney for the wife of an action for separation, and for money advanced by Bacon individually to the wife for necessities. In the separation action, $400 counsel fees were allowed to the attorney, the costs taxed were $207.02, the judgment provided for $1,580 accrued alimony and for the further pay,ment to. her of $30 per week. The complaint does not show whether an allowance was made for counsel fees in the action for absolute divorce. If there were such allowance, the amount thereof is the limit of the- husband’s liability to the wife’s attorney and counsel (Naumer v. Gray, 28 App. Div. 529; Damman v. Bancroft, 43 Misc. Rep. 678, but by authority of Naumer v. Gray (supra) and Hays v. Ledman (28 Misc. Rep. 575) it is concluded that recovery for such services cannot be had. It. is not shown at what times and for what specific purposes advances of money for necessaries were made, nor that the money was used in supplying necessities. The husbahd would not support his wife, neither would he pay the sum designated by the court for her support. Bacon supplied the husband’s failure by advancing money, and on occasions a remedy for advances has been found. (Kenny v. Meislahn, 69 App. Div. 572; Wells v. Lachenmeyer, 2 How. Pr. [N. S.] 252.) But when the wife moves the court for direction for payment of money for support, her attorney
The order should be affirmed, with ten dollars costs and disbursements.
Jenks, P. J., Carr, Woodward and Rich, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.