Tompkins and Lauren v. Glass

• Decision Date: 22 October 1964
• Citation: 44 Misc.2d 239,253 N.Y.S.2d 465
• Parties: TOMPKINS & LAUREN, Plaintiffs, v. Edward C. GLASS, Defendant.
• Court: New York City Court

Page 465

253 N.Y.S.2d 465

44 Misc.2d 239

TOMPKINS & LAUREN, Plaintiffs, v. Edward C. GLASS, Defendant.

Civil Court of City of New York, Trial Term, New York County, Part 7.

Oct. 22, 1964.

Irving Fliegler, New York City, for plaintiffs.

Marks & Lachs, George Marks, Freeport, for defendant.

EDWARD J. GREENFIELD, Judge.

Plaintiffs, as attorneys for a wife in a matrimonial action in Supreme Court, Queens County, which was concluded on October 25, 1961, now sue the husband for services rendered by them in that prior proceeding. The defendant-husband contends that the fixation of temporary alimony and counsel fees in the prior proceeding effectively bars plaintiffs from seeking a further recovery here. Plaintiffs allege that they came into the matrimonial proceeding after attorney's fees had been fixed, and that they did not succeed on appeal with respect to an application temporarily modifying the amount of support awarded until after the separation decree terminating the matrimonial action had been signed.

During the pendency of that action the husband had moved to decrease the support fixed in the interlocutory order from $125 to $50 per week because of alleged denials of his visitation rights. The court granted the husband's motion, reducing the support for a limited period of time, since the wife thereafter complied with the order. Plaintiffs were then retained as successor attorneys to the wife's original attorney. They moved for reargument, unsuccessfully, and then took an appeal. The Appellate Division reversed and reinstated the full amount of support. This reversal came on February 11, 1963, more than sixteen months after the final order in the matrimonial action.

It is well established 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; Horn v. Schmalholz, 150 App.Div. 333, 134 N.Y.S. 652 (2d Dept. 1912); Goldberg v. Keller, 236 App.Div. 541, 260 N.Y.S. 65 (2d Dept. 1932). In such a plenary suit the amount of the counsel fees is fixed with reference to the results actually achieved in the matrimonial litigation. Weidlich v. Richards, 276 App.Div. 383, 386, 94 N.Y.S.2d 546, 548 (1st Dept. 1950).

The wife and her attorney have been afforded an additional statutory remedy permitting application for fees prospectively, measured by the services expected to be rendered and the prospects of success in the matrimonial action. (Section 1169 et seq. CPA; Domestic Relations Law, § 237.) In the matrimonial action, the court is concerned with giving the wife opportunities for protection of her legal rights, and will not award fees for services already rendered in the past, unless there has been a reservation of such right. Sussman v. Sussman, 13 A.D.2d 464, 212 N.Y.S.2d 95 (First Dept. 1961); Fisher v. Fisher, 223 App.Div. 19, 227 N.Y.S. 345 (First Dept. 1928).

If the wife has made application for attorney's fees during the pendency of the matrimonial action, the court's fixation of such fees is the measure of the husband's obligation with respect to that action, and the wife will be deemed to have made an election barring further plenary suit against the husband for such fees. Turner v. Woolworth, 221 N.Y 425, 117 N.E. 814; Dravecka v. Richard, 267 N.Y. 180, 196 N.E. 17. In Turner v. Woolworth, supra, fees were fixed in a separation action. Thereafter the attorneys sought to recover additional sums from the husband, Judge Cardozo stated:

'She chose her tribunal and her remedy. The award then made became, with the costs of the action, the measure of her rights and of her husband's obligation. There was ample power to increase the award, if thereafter it appeared to be inadequate. That power, indeed, was exercised, and there were new orders from time to time. But until increased, the award was final. * * * She invoked a summary remedy, and must abide by the result.' (221 N.Y. pages 428-429, 117 N.E. page 815)

The court went on to say that motions made during the pendency of a matrimonial action could not thereafter be made the basis for additional fees.

'Such motions are common incidents of matrimonial lawsuits. If extra labor follows, the remedy is to move for an increase of the allowance. * * * There is no other liability.' (221 N.Y. page 429, 117 N.E. page 816)

The wife and her attorney are not barred from pursuing an action at common law for legal fees for services rendered in a matrimonial action: (a) if there had never been an application made for counsel fees in the matrimonial suit (Gallin v. Stafford, 10 A.D.2d 915, 200 N.Y.S.2d 498 (1st Dept. 1960), affirmed, 9 N.Y.2d 894, 216 N.Y.S.2d 705, 175 N.E.2d 832; Weidlich v. Richards, supra; Goldberg v. Keller, supra); (b) if, after the conclusion of the matrimonial action the husband has taken further affirmative steps 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 (2d Dept. 1960); (c) if, after the conclusion of a matrimonial action the wife is compelled to seek further relief not inconsistent with the matters adjudicated in the prior action (Gutterman v. Langerman, 2 A.D.2d 63, 153 N.Y.S.2d 113 (1st Dept. 1956)). The tactic of bringing a separate action for legal services rendered to a wife in a prior matrimonial litigation has been severely criticized. See dissenting opinion of Valente, J., in Gallin v. Stafford, supra; 35 N.Y.U. Law Review 1558; Handelman v. Peabody, 285 App.Div. 689, 140 N.Y.S.2d 374 (1st Dept. 1955). In the latter case the court declared:

'The normally adequate and appropriate procedure is to obtain an allowance for the necessary legal services in connection with the application for temporary alimony, and if the extent of those services cannot be adequately estimated and evaluated at that time a reservation may be made of the right to apply to ...