Phillips v. Simmons

11 Abb. Pr. 287, 20 How. Pr. 342

• Court: New York Supreme Court
• Decided: October 15, 1860
• Status: Published

Opinion

Bonney, J.

The defendant must have judgment on this demurrer. I can see no possible ground for maintaining the action. Surely a wife cannot be considered (as plaintiffs have attempted to argue) the agent of her husband, with authority to commence an action against himself, perhaps without cause, and afterwards discontinue it, and thereby make him liable to her attorneys for the costs of the action. While an action for divorce is pending, a wife may, in a proper case, obtain an order that her husband furnish her with means for carrying it on; but when the wife is plaintiff in such an action, and has either discontinued it or been defeated, and judgment been rendered against her, neither she nor her attorneys or counsel can have any claim upon him for the costs or expenses of her fruitless and probably causeless prosecution. Shelton a. Pendleton (18 Conn., 417); Wing a. Hurlburt (15 Verm., 607) ; Dorsey a. Goodenow (Wright's R. (0.), 120), are authorities for this decision.

Judgment for defendant.