Schwartz v. Aberbach

• Decision Date: 16 March 1971
• Citation: 66 Misc.2d 246,319 N.Y.S.2d 1021
• Parties: Norman C. SCHWARTZ, Plaintiff, v. Paul ABERBACH, Defendant.
• Court: New York City Court

Page 1021

319 N.Y.S.2d 1021

66 Misc.2d 246

Norman C. SCHWARTZ, Plaintiff, v. Paul ABERBACH, Defendant.

Civil Court of the City of New York, Bronx County, Special

Term, Part I.

March 16, 1971.

Norman C. Schwartz, pro se.

Copal Mintz, New York City, for defendant.

JOSEPH P. SULLIVAN, Judge.

The sole question presented by this motion to dismiss the complaint is whether a former wife's common-law action for the recovery of necessities i.e., legal fees for services rendered in her behalf, survives a final disposition of the proceeding in which the services were rendered.

The plaintiff in this action is the attorney who represented the wife in the defense of a proceeding brought by her former husband in the Supreme Court, New York County, pursuant to Domestic Relations Law, § 240, seeking custody of the children of the marriage. Under a separation agreement between the parties which was made part of a decree of divorce, custody had previously been given to the wife.

It is a well-accepted principle that legal services rendered to a wife in a matrimonial action are necessaries, and her lawyer has a common-law right to bring a plenary action against the husband for having supplied such services (Elder v. Rosenwasser, 238 N.Y. 427, 144 N.E. 669; Goldberg v. Keller, 236 App.Div. 541, 260 N.Y.S. 65). Of course, the lawyer may not claim for himself any greater right than the wife's or different standard of determining his right to compensation (Weidlich v. Richards, 276 App.Div. 383, 94 N.Y.S.2d 546). And at least prior to the enactment of Domestic Relations Law, § 237, effective September 1, 1963, the wife and her attorney were not barred from pursuing an action at common law for legal fees for services rendered in a proceeding taken after the conclusion of a matrimonial action to alter the effect of the judgment (Fox v. Fox, 263 N.Y. 68, 188 N.E. 160; Friou v. Gentes, 11 A.D.2d 124, 204 N.Y.S.2d 836).

Domestic Relations Law, § 237(b), which affords a statutory remedy for the recovery of fees 'Upon any application to annul or modify an order or judgment * * * for custody * * * of a child * * * or upon any application * * * concerning custody * * *' provides that '* * * the Court may direct the husband or father to pay such sum * * * for the prosecution or defense of the application or proceeding by the wife or mother * * *.' However, '* * * such direction may only be made in the order or judgment by which the particular application or proceeding is finally determined.'

The former husband's application, brought on by order to show cause, seeking custody of the children, as well as a companion application for related relief, was denied, without any hearing, on the grounds that the facts set forth in the papers did not justify the relief sought. Such disposition was without provision for or reference to the payment of counsel fees for the former wife, whose attorney, without making any formal application therefor and without specifying any amount, requested counsel fees for defending the wife. This request was contained in the attorney's affidavit submitted in opposition to the husband's application.

The question posed by the Court in Tompkins & Lauren v. Glass, 44 Misc.2d 239, 253 N.Y.S.2d 465, whether Domestic Relations Law, § 237, provides the exclusive remedy for the recovery of counsel fees, thus eliminating the separate common-law action, has now been answered in the negative (see Levine v. Levine, 48 Misc.2d 15, 263 N.Y.S.2d 997, aff'd. 50 Misc.2d 39, 269...