Cardozo v. Gulack

• Decision Date: 30 April 1968
• Citation: 289 N.Y.S.2d 593,30 A.D.2d 42
• Parties: Benjamin M. CARDOZO, doing business under the firm name and style of Cardozo & Cardozo, Plaintiff-Respondent, v. Marjorie Mae GULACK, Defendant, and Irving Gulack, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 593

289 N.Y.S.2d 593

30 A.D.2d 42

Benjamin M. CARDOZO, doing business under the firm name and style of Cardozo & Cardozo, Plaintiff-Respondent, v. Marjorie Mae GULACK, Defendant, and Irving Gulack Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

April 30, 1968.

Benjamin Adler, New York City, for appellant.

James Harrington, New York City, of counsel (Kissam & Halpin, New York City), for respondent.

Before BOTEIN, P.J., and STEVENS, EAGER, McGIVERN and RABIN, JJ.

PER CURIAM.

This court, in June 1963, affirmed an order denying a motion by appellant for summary judgment dismissing the complaint herein (Cardozo v. Gulack, 19 A.D.2d 697, 242 N.Y.S.2d 171). In May 1967 appellant moved to dismiss the action for failure to prosecute, and in the alternative applied again for summary judgment, citing events subsequent to the earlier denial in justification. He was awarded neither relief, and now appeals confining his attack to the failure to grant summary judgment.

Respondent, an attorney, brought this action to recover from appellant and his wife the reasonable value of legal services rendered the wife in connection with her matrimonial difficulties. We are concerned only with the cause of action alleged against appellant, which proceeds on the theory that the services are chargeable to him as necessaries.

The services performed by respondent consisted of advice to the wife regarding her marital rights and duties and the institution on her behalf of a suit for separation. The complaint in that suit alleged that as a result of appellant's conduct she moved out of their apartment on February 14, 1961. Together with a notice of motion for temporary alimony and counsel fees, the complaint was served on appellant on February 17, 1961. That day or the next he and his wife became reconciled, and her action was never pressed.

On April 11, 1961 respondent served his complaint in the instant action. The second cause of action sets forth the basis of appellant's liability and contains the following allegation:

'SEVENTH: Upon information and belief, that at all the times herein mentioned the conduct of the defendant Irving Gulack justified the defendant Marjorie Mae Gulack in leaving their marital abode and living separate and apart from the said Irving Gulack and commencing an action for a separation against the said Irving Gulack, based upon his cruel and inhuman treatment of the said Marjorie Mae Gulack.'

By this allegation respondent gave proper recognition to the doctrine applicable to his claim. The legal concept on which such a claim rests, we said in Weidlich v. Richards, 276 App.Div. 383, 385, 94 N.Y.S.2d 546, 547, is 'that a husband is liable for the necessaries of his wife while she is living apart from him due to his fault. His fault and her right to a separate living are the issues in any action for necessaries, whether the action is brought by the wife or by the supplier of the alleged necessaries Constable v. Rosener, 82 App.Div. 155, 81 N.Y.S. 376, affirmed 178 N.Y. 587, 70 N.E. 1097; McDermott v. Books, 128 Misc. 17, 217 N.Y.S. 181, affirmed 218 App.Div. 849, 218 N.Y.S. 809.' As pointed out in McDermott v. Books--like the Weidlich case, an action by an attorney--'the burden is upon any one seeking to hold the husband for necessaries furnished to the wife to show that the separation was due to the fault of the husband.' And for the plaintiff attorney to make out a prima facie case at trial, more is required, it has been remarked, 'than the mere recital by the plaintiff of facts stated to him by the wife and thereafter incorporated in a complaint' (Levine v. Raymond, 3 A.D.2d 36, 39, 157 N.Y.S.2d 799, 802).

It is not unknown that a wife who has for valid reason left her husband may thereafter reunite with him and, as the cases which follow in this paragraph attest, reconciliation in itself will not defeat the attorney's claim. But, as they also show, reconciliation does not dispense with the required showing that the separation was due to the husband's fault. In Levine v. Raymond, supra, the attorney succeeded because an agreement signed by the spouses at the time of reconciliation indicated inadequacy of prior support and the wife testified that the allegations of the complaint in her separation action were true. In Naumer v. Gray, 41 App.Div. 361, 58 N.Y.S. 476, the record on appeal shows that the wife testified to the cruel and inhuman treatment which had formed the basis of her action for separation. In Langbein v. Schneider, 27 Abb.N.C. 228, 247, 252, 16 N.Y.S. 943, the wife's attorneys relied 'on evidence that the actual cruelty of her husband made it necessary for her to sue.' In Kaufman v. Farah, 281 App.Div. 48, 50, 117 N.Y.S.2d 525, 527, where a complaint was sustained which alleged discontinuance of the wife's separation action because she had been reconciled with her husband, the court said: 'plaintiff must show affirmatively that the suit was brought for the protection and support of the wife, and that the conduct of the husband was such as to render its institution and prosecution 'necessary'.' In Arnold v. Brill, 139 Misc. 846, 847, 250 N.Y.S. 164, 165, it 'was admitted at the trial that the conduct of the defendant justified his wife in contemplating the separation action, and that she probably would have obtained a judgment for separate maintenance.' See also Turner v. Woolworth, 221 N.Y. 425, 427, 117 N.E. 814, 815, where the reconciliation came after a a judgment for separation in favor of the wife.

The obstacle respondent faces is that litigation between appellant and his wife, begun and concluded during the pendency of the instant action and after the first denial of summary judgment, has determined that appellant had not been at fault, that his wife had not been justified in leaving him. The reconciliation proved impermanent. Appellant left the marital home in July 1963 and brought an action for separation. His wife, represented by counsel other than respondent, counterclaimed for like relief. Judgment, later resettled, was entered in August 1964 in favor of appellant and the counterclaim was dismissed on the merits. Appellant's complaint included instances of culpable conduct on the part of the wife during years preceding her 1961 separation action; it alleged that shortly following the reconciliation she had 'reverted to the practices which had created the said discord in the marital life of the parties;' and it recited various practices which she 'continued'. The wife's counterclaim, apart from an allegation that appellant abandoned her in July 1963, is for the most part based, though in general terms, on incidents which preceded her 1961 action and which are detailed in the complaint in that action; and indeed the counterclaim alleges as a ground for separation that 'on the 14th day of February, 1961, plaintiff (sic) was obliged to flee the marital home as the result of the plaintiff's threatening conduct and upon his repeated advice to the defendant that the 'marriage has to end. " The judgment recites that the decision of the court found 'that plaintiff has sustained the allegations in his complaint and that the defendant has failed to prove a cause of action for separation in her favor by a fair...