Seitz v. Seitz

17 A.D.2d 669, 230 N.Y.S.2d 152, 1962 N.Y. App. Div. LEXIS 8720

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 1962
• Status: Published

Opinions

Appeal from an order of a Special Term of the Supreme Court, Ulster County. At the time plaintiff’s motion for alimony and counsel fees was made at Special Term, June 2, 1961, the matrimonial action was pending and proof submitted by plaintiff was before the court which, if accepted, would warrant a substantial allowance. No stipulation or order of discontinuance of the action was entered, but simultaneously on June 28, 1961, both attorneys wrote the Judge at Special Term stating the parties had adjusted their differences and requesting that he fix the counsel fees. This the Judge did, and fixed the sum of $1,500. Appellant does not make it a point on appeal that the amount is excessive; nor does he demonstrate from the record that if the Special Term accepted the plaintiff’s proof rather than the defendant’s a substantial allowance for counsel fees would not be warranted. The main complaint of the appellant on the argument of ■ this appeal is that in writing to the J udge the statement by the lawyer for the wife that the husband had transferred $100,000 in securities to the wife was not warranted. An assertion appears in the appellant’s brief, wholly unsupported. by any proof in the record, that this is an inaccurate statement. Nothing appears in the record to suggest that if this statement is inaccurate this was ever called to the attention of the Judge at Special Term. When lawyers for opposing parties write simultaneous letters to a Judge, he ought to be able to assume that the facts are correct and his resulting order should not be reversed as error on the basis of an argument made for the first time on appeal that what one of the letters says is wrong. Under the practice such a situation including a failure of the attorney for the wife to send his adversary a copy of his letter to the Judge and the question of authority of the attorney for the husband to request the counsel fee be fixed at that time should be corrected by appropriate application to Special Term and it still may be corrected by such an application. Order affirmed, with $10 costs, without prejudice to an application to the Special Term for reconsideration of the motion. Bergan, P. J., Gibson and Taylor, JJ., concur;