dissent and vote to reverse and remit, in a memorandum by Herlihy, J.: The summons and complaint, with an order to show cause seeking alimony and counsel fees, were served on the defendant May 31, 1961. Upon return of the motion, the defendant was given additional time to serve affidavits. The answer and reply affidavits were served on June 9th and shortly thereafter and before any order was made or entered, a reconciliation between the parties was effected. Thereafter on June 28, 1961, the attorney for the plaintiff addressed a letter to the court advising that the parties had adjusted their differences, making the observation that defendant had transferred to his client a substantial amount of securities, and further stating that the attorney for the defendant and plaintiff had indicated their agreement that the court fix the fee for services. On the same date, the attorney for the defendant wrote a letter stating counsel fees had not been fixed, that a reconciliation had been effected and stating “ I am wondering whether or not the Court would be in a position to fix the amount for services rendered by the plaintiff’s attorney”. There was no exchange of these letters between the attorneys prior to the signing of the order by Special Term (July 6, 1961) which fixed the amount of the fee. There is no intimation in the record before us that the defendant husband knew or agreed to such procedure. . If such should be the fact, upon remittal, Special Term would have no jurisdiction to fix any fees following a reconciliation between the parties. (Conklin v. Conklin, 201 App. Div. 170, affd. 234 N. Y. 546; Keane v. Keane, 86 Hun 159 [1st Dept.]; Pettet v. Pettet, 61 N. Y. S. 2d 232; Matter of Brackett, 114 App. Div. 257, affd. 189 N. Y. 502; Quinn v. Quinn, 133 Misc. 266; Ann., 45 A. L. R. 941.) The attorney is relegated to an action against the husband for the value of the services rendered to the wife in the prosecution of the separation action. (Naumer v. Gray, 41 App. Div. 361; Holt v. Carr, 170 Misc. 32, mod. on other grounds 258 App. Div. 772; Quinn v. Quinn, supra.) With deference to the decision of the majority, the subject matter herein involved goes considerably beyond whether Special Term should be affirmed or reversed. The letters from the respective attorneys disclose that a reconciliation was effected between the parties, the continuance of which is of far greater importance than the order involved. I am not suggesting Special Term was in error. However, it is apparent from the record on appeal that Special Term was beguiled into its decision. Defendant should have moved before Special Term for reconsideration of the order rather than appeal to this court but, under the unusual circumstances and in the interests of justice, the matter should be remitted to the Special Term for its further consideration. Accordingly, I vote to reverse and remit.