Rosenblatt v. Wolf

• Decision Date: 18 December 1962
• Citation: 236 N.Y.S.2d 68,17 A.D.2d 396,12 N.Y.2d 808
• Parties: Sol A. ROSENBLATT, Plaintiff-Respondent, v. Lawrence P. WOLF, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 68

236 N.Y.S.2d 68

17 A.D.2d 396

Sol A. ROSENBLATT, Plaintiff-Respondent, v. Lawrence P. WOLF, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 18, 1962.

Sidney H. Koblentz, New York City, for appellant.

Isaac Gluckman, New York City, of counsel (Herman S. Axelrod, New York City, with him on the brief), for respondent.

Before BOTEIN, P. J., and BREITEL, VALENTE, McNALLY and STEVENS, JJ.

BERNARD BOTEIN, Presiding Justice.

Plaintiff, an attorney, sues to recover from defendant the reasonable value of legal services rendered in a number of legal proceedings brought by or against defendant's wife. Defendant appeals from an order denying his motion to dismiss the complaint as insufficient.

Defendant and his wife are separated and the latter has custody of their infant children. Under the separation agreement the wife is entitled to receive periodic payments for the support of herself and the children. Defendant allegedly defaulted in making the payments and the wife retained plaintiff as her attorney. Plaintiff brought three lawsuits on behalf of the wife against her husband to enforce the provisions of the separation agreement. He also represented her in connection with a habeas corpus proceeding instituted by the husband and a suit by one Brill against both husband and wife. On the theory that his legal services were necessaries, plaintiff by this action seeks to recover their value from the husband.

Plaintiff urges that the nature of a separation agreement endows it in support of his claim with the status of a matrimonial judgment, so that Friou v. Gentes (11 A.D.2d 124, 204 N.Y.S.2d 836) would be applicable (see also Kommel v. Karron, 152 Misc. 294, 273 N.Y.S. 226), and the legal services rendered on behalf of the wife and children would therefore constitute necessaries. Defendant, on the other hand, contends that the views concerning the status of a separation agreement as expressed in such cases as Galusha v. Galusha, 116 N.Y. 635, 22 N.E. 1114, 6 L.R.A. 487, Johnson v. Johnson, 206 N.Y. 561, 100 N.E. 408, and Goldman v. Goldman, 282 N.Y. 296, 26 N.E.2d 265, destroy plaintiff's claim.

In our opinion the deficiencies of the complaint bar present exploration of these contentions, whether they relate to the claim based upon services rendered the wife or services on behalf of the children--which latter claim we appreciate is on a different footing (see Gutterman v. Langerman, 2 A.D.2d 63, 153 N.Y.S.2d 113; Krieger v. Krieger, 162 Misc. 930, 296 N.Y.S. 261; 16 New York Jur., Domestic Relations, § 546, p. 108). The description of the services is confined to little more than a stark listing of litigation (cf. Kaufman v. Farah, 276 App.Div. 178, 93 N.Y.S.2d 257, modified in other respects, 303 N.Y. 819, 104 N.E.2d 368). No adequate showing is made that the services were reasonable and proper (cf. Steuer v. Hart, 175 App.Div. 829, 162 N.Y.S. 489; Kaufman v. Farah, 281 App.Div. 48, 117 N.Y.S.2d 525); and, while the complaint refers to a variety of litigation brought or defended on the wife's behalf we are left in the dark as to the state of pendency or the outcome of any of these matters (cf. Weidlich v. Richards, 276 App.Div. 383, 94 N.Y.S.2d 546). No explanation of the nature of the Brill action or of the habeas corpus proceeding is presented. Likewise unexplained is the allegation that another attorney had been substituted for plaintiff in all the litigation, an allegation which in its present form raises the question whether a fair evaluation of plaintiff's services can now be made.

If the action is started anew, as should be permitted, consideration might be given to the possible bearing of paragraph Sixth of the separation agreement, in which the parties agree not to contract any debt or liability on behalf of the other. Compare the agreements in Marson v. Marson, 6 A.D.2d 786, 175...