Gutterman v. Langerman

• Decision Date: 03 July 1956
• Citation: 153 N.Y.S.2d 113,2 A.D.2d 63
• Court: New York Supreme Court — Appellate Division
• Parties: Lester GUTTERMAN and Lester Gutterman, Howard A. Newman and Joseph K. Reichbart, practicing law under the firm name of Gutterman, Newman & Reichbart, Plaintiffs-Appellants-Respondents, v. Nathaniel LANGERMAN, Defendant-Respondent-Appellant.

Page 113

153 N.Y.S.2d 113

2 A.D.2d 63

Lester GUTTERMAN and Lester Gutterman, Howard A. Newman and Joseph K. Reichbart, practicing law under the firm name of Gutterman, Newman & Reichbart Plaintiffs-Appellants-Respondents, v. Nathaniel LANGERMAN, Defendant-Respondent-Appellant.

Supreme Court, Appellate Division, First Department.

July 3, 1956.

Joseph K. Reichbart, New York City, of counsel (Lester Gutterman and Marvin H. Kucker, New York City, on the brief; Gutterman & Reichbart, New York City, attorneys) for plaintiffs-appellants-respondents.

David L. Schreiber, New York City, of counsel (Harold M. Hoffman, New York City, on the brief; Buchter, Rathheim, Abrams & Hoffman, New York City, attorneys) for defendant-respondent-appellant.

Before PECK, P. J., and BREITEL, FRANK, VALENTE, and BERGAN, JJ.

PER CURIAM.

This is an appeal from two orders: One denying defendant's motion for summary judgment, and the other denying plaintiffs' cross-motion for the same relief. Plaintiffs, who are lawyers, commenced an action in the Supreme Court, New York County, on behalf of defendant's former wife as guardian ad litem for their two infant issue, to obtain an increased allowance for their support and maintenance, over and above an amount fixed for each of them in a Nevada decree of divorce which incorporated support provisions for the children set forth in a prior separation agreement. The Nevada decree was in personam.

The Supreme Court action was decided adversely to the guardian ad litem by the dismissal of her complaint, and by successive appeals was finally determined in the Court of Appeals, Langerman v. Langerman, 303 N.Y. 465, 104 N.E.2d 857. Although the Court of Appeals affirmed the dismissal of the complaint for lack of jurisdiction, it held, in what appears to be a matter of first impression, that the Domestic Relations Court of the City of New York had jurisdiction to make an order independently of the valid existing decree in the State of Nevada which provided for the support of the infants, New York City Domestic Relations Court Act, § 91. The Court of Appeals also held that there was no limitation in the amount of support for such infants if the petitioner was the mother having custody of them, N.Y.City Dom.Rel.Ct. Act, § 92, subd. (3).

Plaintiffs in this action contend that the institution of the Supreme Court action was essential to establish the law with respect to the maintenance of the infant children, and that predicated upon it they obtained in the Domestic Relations Court proceeding, an increased allowance amounting to approximately $2,500 per year for each child. Defendant, however, contends that the Supreme Court proceeding was wholly unnecessary and unwarranted.

Special Term 123 N.Y.S.2d at page 687, held that 'summary judgment cannot be awarded to the plaintiffs, for they are not entitled to recover for services in the Supreme Court action because of the dismissal of the complaint.' We cannot agree with that conclusion. Implicit in the award made by the Domestic Relations Court is the finding that prior thereto, the provision for the benefit of the infants contained in the Nevada decree was inadequate. Moreover, defendant admits that he has paid the increased sums in compliance with Domestic Relations Court determination and has taken no appeal therefrom. All legal services furnished the infants to achieve the result, therefore, may have been necessaries. We cannot say, at this time, that the commencement of the Supreme Court action, resulting as it did in the dismissal of the complaint on jurisdictional grounds, was abortive, since it may well have set the course which culminated in the Domestic Relations Court proceeding.

To require that victory in a given action be an indispensable prerequisite before recovery can be had on a quantum meruit basis without consideration as to whether the defeat suffered in one arena made a substantial contribution to ultimate success, is to impose too narrow a construction upon professional labors. See Strong v. Dutcher, 186 App.Div. 307, 316, 174 N.Y.S. 352, 358; Matter of People by Beha (Second Russian Ins. Co.), 136 Misc. 715, 717, 718, 242 N.Y.S. 100, 102, 103; 7 C.J.S., Attorney and Client, § 166, p. 1023.

Not to be confused is the narrow situation that obtains in an action where success or the reasonable prospect thereof is the basis for counsel fees as necessaries as between husband and wife. For the infants here, the lawyers were obligated to render competent legal services, and not to guarantee results. So long as their efforts--all their efforts--resulted in benefit to the infants, their services may have been necessary and...