206 Misc. 707 | N.Y. Sup. Ct. | 1954
Motion for summary judgment by plaintiffs, in an action against husband of a former client for fees for representing the wife in a separation action. The separation action was tried in this court and fees of plaintiffs herein, as attorney for plaintiff therein, were set at $11,000. This sum the husband has not paid. He originally appealed from the order setting the fee, but did not prosecute the appeal and it has been dismissed. Plaintiffs moved in this court, in the separation action, to fix the amount of their attorney’s lien and for a personal judgment against the husband in that action. The amount of the lien was set at $11,000 but- the court, by Mr. Justice Bailey, denied the right to enter a personal judgment in the separation action. Plaintiffs also moved in this court, still in the separation action, to enter a money judgment on behalf of the wife for the legal fees and for execution. This was denied by Mr. Justice Brennan on the ground that the wife did not authorize the application, the court referring to the fact that plaintiffs have brought the instant action, “ the only remedy available to them ”.
The instant complaint has two causes of action, the first for $11,000 on the theory of the foreclosure of the attorney’s lien, and the second a common-law action for necessaries furnished the wife to the extent of $25,000. Defendant pleads several defenses, the essence of which is that the first cause of action falls because of the decisions of Justices Bailey and Brennan, referred to above. Those decisions were in motions in the separation action, and held only that the respective reliefs sought could not be granted in that action.
That a common-law action of this type can be maintained has been decided in many cases. (Naumer v. Gray, 28 App. Div. 529; Holt v. Carr, 170 Misc. 32; Weidlich v. Richards, 276 App. Div. 383.) But defendant maintains that the award for legal