
    DAMMAN v. BANCROFT.
    (Supreme Court, Appellate Term.
    May 19, 1904.)
    1. Separation—Attorney's Fees—Judgment—Conclusiveness.
    In an action for separation, an order requiring plaintiff’s husband to pay $150 counsel fees conclusively established the measure of the husband’s liability for his wife’s attorney’s fees in such suit.
    2. Same—Necessaries.
    Where, at the time plaintiff brought suit for defendant’s wife to recover certain articles alleged to belong to her, then in defendant’s possession, plaintiff knew that the husband and wife were living apart, and that the Supreme Court, in an action for separation, had fixed the amount necessary for the wife’s support and maintenance, plaintiff was not entitled to recover from the husband attorney’s fees for prosecuting the suit to recover such property.
    Appeal from Municipal Court, Borough of Manhattan, Twelfth District.
    Action by Milton Damman against Olin F. Bancroft. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed.
    Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ.
    
      L. W. Naylor, for appellant.
    C. E. Reed, for respondent.
   TRUAX, J.

This is an action brought by the plaintiff, who was the attorney for the defendant’s wife, to recover compensation for services rendered by him as such attorney in an action for separation brought by the defendant’s wife, and also to recover compensation for services rendered by him for the defendant’s wife in securing the possession of property belonging to the defendant’s wife, which property was held by the defendant.

The evidence shows that, while the proceedings in the action for separation were pending, an order for $150 counsel fee was made in behalf of the plaintiff in that action; that $100 of said $150 was paid to the plaintiff, and that then another attorney was substituted for the plaintiff in said action as the attorney for the plaintiff in the action for separation; and that the action for separation is still pending.

I am of the opinion that Naumer v. Gray, 28 App. Div. 529, 51 N. Y. Supp. 222, is not an authority in favor of the plaintiff herein. It is true, it was held in that case that an attorney may maintain an action against a husband to recover the value of legal services rendered by the attorney in the institution and prosecution of an action against the husband by his wife for his separation upon the ground of cruel and inhuman treatment, that the plaintiff in such an action must show affirmatively that the suit was for the protection and support of the wife, and that the conduct of the husband was such as to render its institution and prosecution reasonable and proper; but the Naumer Case is to be distinguished from the case before us in two respects. First, in the Naumer Case it appeared that the parties had become reconciled. See Naumer v. Gray, 41 App. Div. 361, 58 N. Y. Supp. 476. Secondly, it did not appear that an order for the payment of alimony and counsel fees had been made. In 'the, Naumer Case the court said that it was inclined to the opinion that in case an application had been made in the divorce action, and the court had determined the alimony and counsel fee to be awarded the plaintiff, such determination would conclusively establish the measure of the husband’s liability. The case of Hays v. Ledman, 28 Misc. Rep. 575, 59 N. Y. Supp. 687, follows Naumer v. Gray; but in that case, as in the Naumer Case, the action to recover the attorney’s compensation had been instituted after a reconciliation had been effected between the husband and his wife, and it further appeared in that case that an order had been entered discontinuing the separation suit. I am of the opinion that the doctrine of Naumer v. Gray and Hays v. Ledman should not be extended beyond the facts shown in those two cases.

Part of the recovery in this action was for services rendered by the plaintiff herein to the wife of the defendant in procuring the recovery of certain articles belonging to the defendant’s wife, but then in the possession of the defendant. At the time these services were rendered, the defendant and his wife were living separate and apart, and the order awarding the defendant’s wife alimony and counsel fee had been made. I am of the opinion that plaintiff cannot recover for the sew ices above mentioned. He knew that the defendant and his wife were living separate and apart when he rendered these services, and that the Supreme Court in the action for separation had fixed the amount that was necessary for the support and maintenance of the defendant’s wife. It would be unjust, after such an amount had been fixed on the application of the plaintiff herein, and the court had" determined the amount, to give in this action more for the support and maintenance of the wife than had been given her in the action for separation.

I am of the opinion that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event/ All concur.  