McBride v. McBride

6 N.Y.S. 447, 60 N.Y. Sup. Ct. 448, 24 N.Y. St. Rep. 805, 53 Hun 448, 1889 N.Y. Misc. LEXIS 628

Opinion

Per Curiam.

The allowance granted herein by way of counsel fees to the plaintiff does not seem to us to be at all excessive, provided the court had the power to make provision for any compensation to her counsel. It is claimed that under the rule laid down in the case of Beadleston v. Beadleston, 103 N. N. 402, 8 N. E. Rep. 735, no allowance whatever can be made in this case. The rule laid down is certainly a very strict one, and calculated to work great injustice to a wife who has been successful in an action of divorce, because, if the construction to be put upon the decision which is claimed by the appellant is the true one, where a wife has been denied counsel fee because of the showing made against her by affidavits, upon an application for counsel fee, although she may succeed upon the trial, where witnesses are examined in open court, there is no power in the court to compensate her counsel for their labors in her behalf. We do not think that this is the true interpretation of the decision in question, notwithstanding the broad language used, but that, where anything remains to be done to perfect the judgment to which the wife has been held to be entitled after trial, and it appears that future services of counsel will be necessary to perfect the judgment, and to conduct the future steps in the litigation, and that the wife will not be able to retain her counsel unless compensation is made for this service, the court has ample power to protect her, and to secure to her the future services of her counsel. The order appealed from should be affirmed, with costs.