Elder v. Rosenwasser

• Decision Date: 05 July 1924
• Citation: 238 N.Y. 427,144 N.E. 669
• Parties: ELDER v. ROSENWASSER.
• Court: New York Court of Appeals Court of Appeals

238 N.Y. 427

144 N.E. 669

ELDER

v.ROSENWASSER.

Court of Appeals of New York.

July 5, 1924.

Two actions by Robert H. Elder against Philip Rosenwasser. From unanimous judgments of the Appellate Division (208 App. Div. 745,202 N. Y. Supp. 924), affirming two determinations of the Appellate Term (121 Misc. Rep. 181,200 N. Y. Supp. 620), which in turn reversed two judgments of the Municipal Court in favor of plaintiff, plaintiff appeals.

Judgments of Appellate Division and Appellate Term reversed; judgments of Municipal Court affirmed.

Appeal from Supreme Court, Appellate Division, Second Department.

Otho S. Bowling, of New York City, for appellant.

Prince & Loeb, of New York City (Sidney J. Loeb, of New York City, of counsel), for respondent.

CRANE, J.

Elizabeth M. Rosenwasser brought an action for separation against her husband, Philip Rosenwasser, in which she made a motion for alimony pendente lite and for counsel fee. The late Justice Arnon L. Squiers sitting at Special Term on the 28th day of June, 1920, granted a counsel fee of $900, but in all other respects denied the motion.

On June 21, 1920, one Sadie Pearlstein commenced an action against Elizabeth Rosenwasser for libel, alleging that Mrs. Rosenwasser had caused her damage by reason of certain false and libelous statements set forth in affidavits used in the said separation action relating to her conduct with Mr. Rosenwasser. On the 22d day of December, 1920, Elizabeth Rosenwasser was arrested on a warrant of the city magistrate, charged with assault and grand larceny. The complainant was the same Sadie Pearlstein.

Both of these actions were defended by Mrs. Rosenwasser, with the aid and assistance of Robert H. Elder, whom she employed as her attorney. The proceedings were terminated in Mrs. Rosenwasser's favor. The separation action resulted in a judgment for the plaintiff on November 21, 1921. 117 Misc. Rep. 123,190 N. Y. Supp. 774. In August of 1922, the attorney, Robert H. Elder, not having been paid for his services, commenced two actions in the Municipal Court of the City of New York against Philip Rosenwasser, the husband, to recover compensation. One action was for services in the criminal court; the other, for services in the libel suit. These actions were tried together and resulted in judgments for the plaintiff.

On appeal, the Appellate Term reversed the decision of the Municipal Court, and this reversal has been affirmed by the Appellate Division, which, however, has sent the case here, certifying that a question of law is involved which ought to be reviewed by the Court of Appeals.

[1] The only opinion written below was that of the Appellate Term, wherein it was very ably set forth that legal services rendered under the circumstances here stated were such necessaries as would ordinarily make a husband or make this husband liable therefor. In this conclusion we agree with the Appellate Term. Where a wife living with her husband, whom he is obliged to support, is arrested on a criminal charge or prosecuted in a civil action which may result in her incarceration, the necessity for a lawyer may be as urgent and as important as the necessity for a doctor when she is sick. Her health is a very important matter in the maintenance of the home, and the happiness or even existence of the marital state. Of like importance is her presence in the home, which may be interrupted and the home broken up by taking her therefrom on a criminal charge. The mental suffering and anguish which may result from an unwarranted suit for alleged libel may be as disastrous in its effects as any other mental sickness or disorder. Such actions may therefore, dependent, of course, upon circumstances, require the husband to pay a reasonable lawyer's bill for services in protecting his wife. In this case we think there was evidence which justified the Municipal Court in determining that the services were necessaries and that the amounts allowed were reasonable. Conant v. Burnham, 133 Mass. 503, 43 Am. Rep. 532;Warner v. Heiden, 28 Wis. 517, 9 Am. Rep. 515;Munson v. Washband, 31 Conn. 303, 83 Am. Dec. 151;Morris v. Palmer, 39 N. H. 123;Moran v. Montz, 175 Mo. App. 360, 162 S. W. 323;Mulligan v. Mulligan, 161 Ky. 628, 171 S. W. 420;Peaks v. Mayhew, 94 Me. 571, 48 Atl. 172.

[2] The Appellate Term, however, held that Mr. Rosenwasser was not liable for these necessary lawyer's services because of the order of Special Term made in the separation action. That order, as stated above, while granting counsel fee of $900, denied alimony. The Appellate Term considered this a determination that the husband was not obliged to support his wife. In the opinion we read:

‘Here the court said that it was not the duty of the husband to take care of his wife. The reasons for it do not appear. The testimony that she had the use of the house and the husband had made arrangements to supply her with foodstuffs may have decided the court in that connection. But, whatever the reason was, the order was the measure of the husband's liability.’

We do not view this order as having this effect. It was a temporary order, made in the discretion of the court pending litigation. It did not finally determine the rights of the parties. It was not a final decree, and therefore could not have that effect. People ex rel. Com'rs of Public Charities & Correction v. Cullen, 153 N. Y. 629, 47 N. E. 894,44 L. R. A. 420.

Section 1769 of the Code of Civil Procedure reads:

In an action for divorce or separation, ‘the court may, in its discretion, during the pendency thereof, from time to time make and modify an order or orders, requiring the husband to pay any sum or sums of money necessary to enable the wife to carry on or defend the action, or to provide suitably for the education and maintenance of the children of the marriage, or for the support of the wife, having regard to the circumstances of the respective parties.’

The wife was not obliged to resort to the court for support pending the action; to do...