Morris v. Anderson

7 A.D.2d 886, 181 N.Y.S.2d 223, 1959 N.Y. App. Div. LEXIS 10291

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1959
• Status: Published

Opinion

Order reversed, with $10 costs and disbursements, and motion denied, without costs. Memorandum: Plaintiff, an attorney, brings this action to recover for legal services rendered to the wife of the defendant. The appeal is from an order striking out the answer and directing judgment in favor of the plaintiff and ordering that the matter be referred to an Official Referee to determine the plaintiff’s damages. It appears from the affidavits submitted on the motion that the legal services were performed in prosecuting an action on the part of the wife to set aside a Nevada decree of divorce in which he succeeded. Plaintiff in the same action also sought to set aside a separation agreement in which he was unsuccessful. Since the separation agreement between the husband and wife is still in existence and held to be valid, it may have an important bearing upon plaintiff’s right to recover for legal services in the present action. ( See Berry v. Jaworski, 187 Misc. 481, affd. 271 App. Div. 932; Schmelzel v. Schmelzel, 287 N. Y. 21, 27.) The defendant sets forth in his answer that he has complied with all the terms of the separation agreement. The papers on the motion for summary judgment did not include the separation agreement and the terms thereof are not before us. In these circumstances the order for summary judgment should be reversed and the motion denied. All concur. (Appeal from an order of Monroe Special Term granting plaintiff’s motion for summary judgment, striking out defendant’s answer and directing judgment in favor of plaintiff, and referring the matter to Van Duser, Official Referee, to determine plaintiff’s damages, in an action to recover fees for legal services performed for defendant’s wife.) Present — McCum, P. J., Williams, Bastow, Goldman and Halpern, JJ.