GEORGE P. HORN, Appellant,
EDWARD B. SCHMALHOLZ, Respondent.
APPEAL by the plaintiff, George P. Horn, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 27th day of June, 1911, upon the dismissal of the complaint, by direction of the court, upon the pleadings and upon the opening on a trial at the Kings County Trial Term.
Isaac R. Oeland, for the appellant.
John M. Zurn [Edward H. Hawke, Jr., with him on the brief], for the respondent.
The plaintiff sues as assignee of one Benno Loewy, an attorney and counselor at law, to recover the reasonable value of certain professional services heretofore rendered by said Loewy to the defendant's wife, Margaret Schmalholz. The complaint alleges in substance that in 1903 said Margaret Schmalholz brought an action for a separation in the Supreme Court of this State, Kings county, in which action final judgment was rendered in her favor November 30, 1903, directing the defendant to pay her alimony at the rate of $120 per month; that in
April, 1906, said Margaret Schmalholz employed said Benno Loewy as her attorney upon the credit of the defendant and relying upon the duty and lawful obligation of the defendant to pay for said services to obtain an increase in the amount of of said alimony; that said Benno Loewy, pursuant to such employment, instituted and conducted certain proceedings set forth in full in the complaint, resulting in an order entered in the said separation action May 10, 1906, increasing the alimony to $200 per month; that the defendant has never appealed from said order, but has ever since paid said alimony; that the time to appeal from said order has passed; that the said separation action was an action for the support and protection of defendant's said wife, and that the said order increasing her alimony was for her protection and support and rendered reasonable and proper by the conduct of the defendant. The complaint then duly alleges an assignment of Loewy's claim to the plaintiff, and demands judgment against the defendant for the reasonable value of Loewy's services in obtaining said order increasing the alimony payable to the defendant's wife. The defendant filed an answer denying knowledge or information sufficient to form a belief as to all the allegations of the complaint excepting the recovery of the judgment for separation, the increase and payment of the alimony and the fact that no appeal was taken. After a jury had been impaneled for the trial and after the plaintiff's opening speech, the defendant's counsel moved to dismiss the complaint and for judgment on the pleadings, on the ground that the complaint did not state facts sufficient to constitute a cause of action in that it appeared that the services were rendered by an attorney subsequent to the entry of final judgment in an action for a separation. The motion was granted and the plaintiff appeals from the judgment dismissing his complaint.
The case most nearly in point in this State seems to be Naumer v. Gray (28 A.D. 529). There this court unanimously decided that a husband was liable for legal services rendered his wife in instituting and prosecuting an action against the husband for a separation upon the ground of cruel and inhuman treatment if the attorney could show that the action was for the protection and support of the wife and if the
husband's conduct had been such as to render its institution and prosecution reasonable and proper. In that case as in the case at bar the court below dismissed the complaint. Justice CULLEN, writing for this court in an exhaustive opinion, collated and considered the many conflicting authorities on the general subject in this and other jurisdictions and showed that the weight of American authority sustained the maintenance of such an action when the services had been rendered in an action for a separation, but not when they had been rendered in an action for an absolute divorce. The reason expressed for the distinction was that the attorney's action, being based upon the necessity for the protection and support of the wife as such, could not be maintained when the services had been rendered in an action to dissolve that relationship, but could only be maintained when the services had been rendered in an action for a limited divorce, for the protection and support of the wife in her relation as such, which marital relation would survive the final judgment. No such distinction has ever been established by the English courts, and in that jurisdiction as well as in some American States the attorney may maintain an action against the husband for services rendered the wife in an action for an absolute divorce as well as in one for a separation.
The trial of the Naumer Case (supra), pursuant to the direction of this court, resulted in a judgment awarding the plaintiff one hundred dollars. The case again came before this court (41 A.D. 361) upon the defendant's appeal, and he urged a reversal of the judgment on the ground that a counsel fee could have been obtained in the separation action, inasmuch as that action had never been terminated by order of discontinuance, although the wife, having become reconciled, had returned to her husband, and on the ground that the conclusion of the court in the separation action to award the attorney counsel fee of seventy-five dollars was conclusive. This court unanimously affirmed the judgment. Mr. Justice WOODWARD, writing for the court, expressed the opinion that the separation action had been as effectually terminated by the reconciliation between the parties as it would have been by a formal order of discontinuance and that the conclusion of the court to award the plaintiff a counsel fee of seventy-five dollars was not conclusive
as the action had been terminated before the formal entry of any order directing the payment of such counsel fee, and that the appellant had waived any benefit he might have obtained from such conclusion of the court regarding the amount of the counsel fee by going to the jury in the action for services on the question of the value thereof.
The learned trial justice in the case at bar seems to have based his decision upon the fact that the services in the Naumer case were performed before the entry of final judgment in an action for a separation, whereas in the case at bar the services were performed after the entry of final judgment. I do not consider that this difference takes the case at bar from the rule established in the Naumer case. Prior to 1895 there was no proceeding under either the Revised Statutes or the Codes whereby a provision for alimony in a final judgment for divorce or separation could be altered (Walker v. Walker,155 N.Y. 77), and the husband's obligation to support and maintain his wife when he was the guilty party, although continued unchanged in substance, was regarded as finally measured and irrevocably fixed by the terms of the judgment. By chapter 891 of the Laws of 1895, however, the Legislature, by an amendment to section 1771 of the Code of Civil Procedure, conferred jurisdiction on the Supreme Court to 'annul, vary or ...