Krull v. Caldwell

259 A.D. 1049, 21 N.Y.S.2d 61, 1940 N.Y. App. Div. LEXIS 7921

Opinion

Action in the Municipal Court of the City of New York to recover for legal services rendered by the plaintiff to the defendant’s wife. Judgment dismissing the complaint was granted at the close of plaintiff’s ease. The Appellate Term reversed upon the law and granted a new trial. Order of the Appellate Term unanimously affirmed, with costs to abide the event. The order denying the summary application for counsel fees, made in the matrimonial action, does not bar the right to recover compensation for services thereafter rendered, but must be held to conclude the attorney from recovering in a separate action for services rendered up to that time. The issue at the new trial, therefore, should be confined to services rendered after the services for which compensation was claimed in the application in the Supreme Court and denied. In our opinion, an application for counsel fees made in a matrimonial action, even though denied, fixes the measure of the husband’s liability as firmly as if granted. We do not follow the decision in Ehrlich v. McKee (170 Misc. 222; affd., without opinion, 258 App. Div. 715). Present ■ — Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ.