Gallin v. Stafford
| Decision Date | 10 May 1960 |
| Citation | 200 N.Y.S.2d 498,10 A.D.2d 915 |
| Parties | Nathaniel M. GALLIN, Plaintiff-Appellant, v. William F. STAFFORD, Jr., Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
S. S. Goldsmith, New York City, for plaintiff-appellant.
J. Feinstein, New York City, for defendant-respondent.
Before BOTEIN, P. J., and RABIN, VALENTE, McNALLY and BERGAN, JJ.
Order of the Appellate Term and judgment of the City Court reversed on the law without costs; and judgment directed for the plaintiff upon an assessment of damages to be made in the City Court. Plaintiff sues defendant for legal services to the defendant's wife as necessaries in a successful application by the wife in 1957 to modify in her favor a judgment of separation entered in 1947 and for successful opposition to a cross application by defendant to modify the judgment in his favor. No application was made by the wife for counsel fees in these applications which were determined after a hearing before an Official Referee. In these circumstances we consider that we are constrained to follow the decision in Horn v. Schmalholz, 150 App.Div. 333, 134 N.Y.S. 652, which is in point, which has not been overruled and which has been cited by the Court of Appeals. The institution of a separated action by a lawyer against a husband rather than proceeding on application to the court for counsel fees in the matrimonial action was criticized sharply in Handelman v. Peabody, 285 App.Div. 689, 140 N.Y.S.2d 374, but the Horn rule was not disavowed. The decision in Dravecka v. Richard, 267 N.Y. 180, 196 N.E. 17, turned upon the wife's application for counsel fees in currently pending matrimonial litigation; and Turner v. Woolworth, 221 N.Y. 425, 117 N.E. 841, rested upon another point and cited, but did not disapprove, Horn v. Schmalholz.
All concur except VALENTE, J., who dissents and votes to affirm in a dissenting memorandum as follows The determination of the Appellate Term is being reversed solely upon the ground that Horn v. Schmalholz, 150 App.Div. 333, 134 N.Y.S. 652, a case decided in another Department in 1912, commands adherence. The reason and expediency of the rule announced in Horn v. Schmalholz is not re-examined. In fact, it is admitted that the result arrived at runs counter to the expressed policy of this Court as announced in Handelman v. Peabody, 285 App.Div. 689, 690, 140 N.Y.S.2d 374, 376, reargument denied 286 App.Div. 808, 143 N.Y.S.2d 616, that 'A...
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