
    Violet M. Turner, Respondent, Appellant, v. Herbert G. Woolworth, Appellant, Respondent, Impleaded with Martha G. Woolworth, Defendant.
    Second Department,
    December 18, 1914.
    Husband and wife — alimony—liability of husband for costs and counsel fees — liability for moneys advanced by attorney to wife for necessaries.
    The awarding of costs and counsel fees to enable a wife to defend or to maintain a divorce action, fixes the compensation, not only of the attorney of record, but also of counsel, and a further legal. liability cannot be imposed upon a husband who has paid the sums thus directed by the court. Nor can the husband be sued under an alleged common-law liability for the value of counsel services over and above the stated counsel fee and costs, as taxed.
    But where a husband has failed to pay alimony, an attorney who advances money to the wife for necessaries, under an express agreement with her for a lien therefor, may enforce the same against the husband, who, after notice of the lien, procures a satisfaction of the judgment for alimony. •
    Cross-appeals by the plaintiff, Violet M.' Turner, and the defendant, Herbert Gr. Woolworth, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerkmf the county of Kings on the 5th day of January, 1914, upon the decision of the court after a trial before the court without a jury. •
    
      Alexander S. Bacon, for the plaintiff, appellant.
    
      Arnold L. Davis, for the defendant, appellant.
   Putnam, J.:

The sufficiency of the complaint has already been considered. (153 App. Div. 293.)

Plaintiff, as assignee of Mr. Bacon, sues for legal services, money advanced, also for costs and allowances and for counsel fees in matrimonial litigations. The husband first instituted a divorce suit, which resulted in favor of the wife, whereupon the husband paid the temporary alimony, costs and counsel fees awarded against him. But it is claimed that Mr. Bacon as counsel (although not the attorney of record) had a further charge for legal services rendered to the wife for which he may also look to the husband under his common-law liability.

Mrs. Woolworth, through Mr. Bacon as attorney of record, then instituted a separation suit. Eventually she recovered a separation decree, including $1,580 back alimony, with $207.02 costs. The husband’s appeal was ultimately dismissed by the Appellate Division. (Woolworth v. Woolworth, 115 App. Div. 898.) The costs and counsel fees in this suit, with interest, amounted to $943.39. In the meantime the wife, failing to receive her alimony, became in need, and received advances of divers amounts from Mr. Bacon, which aggregated $813.50. An agreement with the wife for a lien therefor stands undisputed. In the effort to collect this alimony copies of the court orders were served on the husband in Boston. Upon his default the Special Term imposed a fine of $850, which on appeal was reduced to $680. (Woolworth v. Woolworth, 115 App. Div. 405.) In the effort to realize on these decrees Mr. Bacon employed a Boston law firm to take proceedings upon the New York judgment in Massachusetts. Ultimately this led to negotiations which resulted in a settlement by the wife, who gave her husband a full release, without the knowledge of Mr. Bacon. This compromise was formally interposed in the Massachusetts proceedings by a supplemental answer, which ended that litigation. To the complaint herein against both husband and wife Mrs. Woolworth answered, but did not appear at the trial.

The justice decreed against the husband for the counsel fees and costs (with interest) in the separation suit, $943.39; advances to the wife and interest, $1,179.57; his untaxable disbursements and interest, $184.42; services and liability to the Boston lawyers in the Massachusetts action, $1,150; and for services on the contempt motions and appeal from order, $468.40; a total of $3,925.78.

The claim for services as counsel in the divorce action, in which all costs and alimony had been paid on the termination of that suit, was, however, disallowed.

Both the plaintiff and Mr. Woolworth have appealed. In support of plaintiff’s appeal, it is urged that the services to the wife in defending and preserving the marital relation are to be fully recompensed, and are not limited to the counsel fees awarded in the particular case. Plaintiff cites Horn v. Schmalholz (150 App. Div. 333). There legal services were rendered after final judgment, for which no counsel fees had been judicially fixed or directed to be paid. Where, however, the court awards a counsel fee to enable a wife to defend, or to maintain, a divorce action, the compensation is then and there determined, not only for the attorney of record, but for the counsel whom she may retain. As this court intimated on the prior appeal, we discover no valid ground to impose a further legal liability upon the husband, who has paid the sums which the court has thus directed. (Naumer v. Gray, 28 App. Div. 529.) Nor can the husband be sued under an alleged common-law liability for an alleged value of counsel’s services over and above the stated counsel fee and her costs as taxed.

As already held (153 App. Div. 293), subrogation to the wife’s rights may be enforced upon proof of advances for necessaries to the wife, made upon the faith of the alimony. The proof here shows such an express subrogation agreement, and the testimony as to necessaries supplied, though not as full as might be, seems sufficient, as no evidence is offered in opposition.

But in the Massachusetts action Mr. Bacon was not the attorney, and it does not appear that he has paid any sum to the Boston lawyers who, before the Massachusetts action could be closed, apparently recovered their costs, or were in a position to do so.

After this settlement by his client, Mr. Bacon’s remedy rests upon a lien on the judgment and recoveries which his client released. We do not find sufficient basis for such a lien for the untaxable disbursements, since they were not embodied in, or secured by any judgment or decree.

From the judgment against Mr. Woolworth, therefore, should be disallowed the two items of untaxable disbursements $184.42, and services and liability in the Massachusetts proceedings, $1,150, thus reducing the recovery to $2,591.36; and as thus modified the judgment is affirmed, without costs of this appeal to either party.

Jenks, P. J., Thomas and Stapleton, JJ., concurred; Carr, J., not voting.

Judgment appealed from reduced to $2,591.36, and as thus modified affirmed, without costs of this appeal to either party.  