Tranter v. Tranter

189 A.D. 714, 178 N.Y.S. 521, 1919 N.Y. App. Div. LEXIS 4743

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 1919
• Status: Published

Opinion

Jenks, P. J.:

The defendant appeals from the part of the interlocutory judgment for absolute divorce against him that orders him to pay $150 “ as and for an extra allowance of costs and counsel fee herein.” When plaintiff moved for confirmation of the referee’s report, she also moved for an extra allowance of counsel fee and costs.

The general rule is that the basis of a counsel fee is necessity prospective at the time of the application. The courts have awarded such fees to discharge past obligations when it has seemed necessary to carry on the action. (Beadleston v. Beadleston, 103 N. Y. 402; McCarthy v. McCarthy, 137 id. 500.) It is not asserted that there was any necessity at the time of the application such as is contemplated by the rules. It is stated that if the application for confirmation of the referee’s report is successful, the attorney for the plaintiff will be required to prepare the interlocutory and the final decree, but nothing more. We think that the judgment in so far as appealed from must be modified by strildng therefrom the provision for $150 as an extra allowance and for counsel fee, and as so modified affirmed, without costs.

Rich, Putnam, Blackmar and Jaycox, JJ., concurred.

Interlocutory judgment in so far as appealed from modified by striking out the provision for $150 as an extra allowance and for counsel fee, and as so modified affirmed, without costs.