Levine v. Raymond

• Decision Date: 19 December 1956
• Citation: 157 N.Y.S.2d 799,3 A.D.2d 36
• Parties: Victor LEVINE, Plaintiff-Respondent, v. Isadore RAYMOND, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 799

157 N.Y.S.2d 799

3 A.D.2d 36

Victor LEVINE, Plaintiff-Respondent, v. Isadore RAYMOND, Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 19, 1956.

Higbie, Coulter, Carr, Ames & Bolton, Syracuse (Richard N. Ames, Syracuse, of counsel), for defendant-appellant.

Mackenzie, Smith, Lewis, Michell & Hughes, Syracuse (Gustav P. Blaustein, Syracuse, of counsel), for plaintiff-respondent.

Before McCURN, P. J., and KIMBALL, WHEELER, WILLIAMS and BASTOW, JJ.

BASTOW, Justice.

The plaintiff, an attorney, has recovered a judgment against defendant for legal services alleged to have been furnished to defendant's wife. The action was brought and recovery obtained upon the theory that such services were necessaries for which the defendant was responsible and liable. Plaintiff testified that during a period of four months he and his associates were consulted by defendant's wife in regard to her claimed matrimonial difficulties with the defendant; that following inconclusive conferences with the husband's attorneys a separation action was commenced. Liberally construed, the complaint served therein contained allegations seeking a separation upon the four grounds of cruel and inhuman treatment; abandonment; nonsupport and conduct on the part of the husband that might render it unsafe and improper for the wife to cohabit with her husband. The latter served an answer placing in issue the material allegations of the complaint and setting forth three separate counterclaims for an annulment of the marriage. Almost simultaneously with the service of the answer a series of conferences commenced between the spouses and their respective attorneys. These resulted nine days later in a reconciliation and the execution of an agreement by the terms of which the wife received substantial present and future monetary benefits but the husband did not admit or concede therein or elsewhere the truth of any the allegations of the complaint.

Thereafter this action was commenced. The sufficiency of the complaint was not attacked either prior to or during the trial. At the close of plaintiff's case a motion was made to dismiss the complaint on the ground that plaintiff had not proved that the wife in the matrimonial action was entitled to a decree of separation. At this point the only proof offered by plaintiff on this phase of the case was his testimony as to facts given to him by the wife and documentary evidence in the form of the pleadings in the separation action and the so-called reconciliation agreement. Neither the wife nor any other witness was sworn to give testimony on this subject. The defendant contends that the denial of this motion was error. The correctness of the decision must be determined, of course, upon the then state of the record and not upon proof submitted as part of defendant's case.

There was once a question as to the right of an attorney to bring an action of this kind but the doubt was laid to rest by the decision of Naumer v. Gray, 28 App.Div. 529, 51 N.Y.S. 222. There Judge Cullen wrote, 28 App.Div. at page 534, 51 N.Y.S. at page 225: 'I think, from this collation of the decided cases, it may fairly be said that the weight of American authority is in favor of the maintenance of an action like the present. To succeed in it, the plaintiff must show affirmatively that the suit was for the protection and support of the wife, and that ehe conduct of the husband was such as to render its institution and prosecution reasonable and proper.' This latter rule as to the quantum of proof required is the corollary of the element of proof required of the tradesman or other furnisher of necessaries that when husband and wife do not live together, it is part of the plaintiff's affirmative case to offer proof that the wife was not suitably provided for and that the separation was not due to the fault of the wife. Constable v. Rosener, 82 App.Div. 155, 162, 81 N.Y.S. 376, 381, affirmed 178 N.Y. 587, 70 N.E. 1097; Altman & Co. v. Durland, 185 App.Div. 114, 118, 173 N.Y.S. 62, 65; McDermott v. Books, 128 Misc. 17, 217 N.Y.S. 181, affirmed 218 App.Div. 849, 218 N.Y.S. 809.

The rule enunciated in Naumer v. Gray, supra, has been consistently followed in passing upon the sufficiency of pleadings in actions brought to recover from husbands for legal services alleged to have been furnished to a wife as necessaries, Kaufman v. Farah, 281 App.Div. 48, 117 N.Y.S.2d 525; Griston v. Rosenfield, 280 App.Div. 273, 113 N.Y.S.2d 616; Steisel v. Gratzer, 3 Misc.2d 816, 66 N.Y.S.2d 526, and in applications for summary judgment, Rubin v. Sorenson, 280 App.Div. 949, 116 N.Y.S.2d 79; Weidlich v. Richards, 276 App.Div. 383, 94 N.Y.S.2d 546; Zipser v. Hardy, 3 Misc.2d 749, 57 N.Y.S.2d 482.

Thus, the motion made by defendant at the close of plaintiff's proof posed for the trial court the question, in part at least, as to whether plaintiff had proved that the separation action had been brought for the protection and support of the wife and that the conduct of the husband was such as to render its institution reasonable and proper. If that prior action had been based solely on the grounds of cruel and inhuman treatment or abandonment or conduct on the part of the husband making it unsafe for the wife to cohabit with him, we believe that further proof would have been required to survive the motion to dismiss. In other words, more was required than the mere recital by the plaintiff of facts stated to him by the wife and thereafter incorporated in a complaint. Indeed, as to the allegation of abandonment it may fairly be inferred from plaintiff's testimony that Mrs. Raymond left her husband as a preliminary step to the institution of the separation action.

We conclude, however, that the motion was properly denied by reason of the proof submitted upon the issue of nonsupport and the services rendered in connection with the counterclaims asserted by the defendant in his answer. The agreement signed by the spouses at the time of reconciliation contained provisions for the future support and maintenance of the wife both during the lifetime of her husband and thereafter, which together with the other proof justified a determination that a prima facie case had been presented of inadequacy of prior support and that the institution of the action was reasonable and proper.

Subsequently, and as part of the defendant's case Mrs. Raymond was called as a witness and testified upon direct examination that the allegations of the complaint in the separation action verified by her were true. The court in its charge correctly stated the...