Kaufman v. Farah

Doee, J. P.

(dissenting). In this third complaint brought by an attorney for services rendered to defendant’s wife, defendant has again moved to dismiss for insufficiency. The original complaint was dismissed for insufficiency by Special Term. The second complaint was dismissed for insufficiency by this court (Kaufman v. Farah, 276 App. Div. 178); the Court of Appeals modified (303 N. Y. 819) the judgment entered on the order but provided that plaintiff be permitted to plead over. The third complaint now before us is the repleading thus permitted.

*51Plaintiff seeks recovery for legal services rendered to defendant’s wife on the ground of necessaries. Essentially he alleges that he brought two actions at the wife’s request: the first in her name against defendant, her husband, for separation; the second in her name as guardian of the children to compel defendant to give proper support and maintenance for the children of the marriage. But in both causes of action herein pleaded (referring to the above two actions), plaintiff alleges that the wife stated she would no longer continue the actions against defendant and requested discontinuance thereof. Both actions were discontinued. In the action for support for the children, plaintiff asked the advice of the court at Special Term; and the complaint alleges that Special Term stated “ in effect that the parties had become reconciled and that the action should be discontinued.” Concededly that action also was discontinued. But it is to be noted, that plaintiff does not allege that the parties did in fact become reconciled.

The net effect and the end results of all plaintiff’s pleaded activity at the wife’s request were nugatory, and the same as if the actions had never been started. Unless the court is willing to make the wife her husband’s agent as to claims against him, made perhaps, without any just cause and in any event abandoned and given up by the wife without any favorable result, it should not hold the husband liable for attorney’s fees, costs and expenses incurred in such actions. Obviously if the actions ended with judgment against the wife, the husband would be under no obligation to pay wife’s lawyer’s fees.

If the actions were discontinued because the parties had become reconciled, an attorney should not attempt to keep the litigation going for the sole purpose of procuring fees for himself. Doubtless plaintiff would have to call the wife to prove her requests and show the charges she made and this litigation might well be occasion of reopening old wounds and causing further matrimonial controversies between the parties.

In this complaint as in the two former complaints, plaintiff fails to show that his services were necessaries. Accordingly, I dissent and vote to reverse and dismiss the amended complaint.

Vah Voobhis and Beeitel, JJ., concur with Cohh, J.; Does, J. P., dissents and votes to reverse and dismiss the amended complaint, in opinion.

Order affirmed, with $20 costs and disbursements to respondent. [See post, p. 812.]