
    Richard Millady, Respondent, v. Leo Stein, Appellant.
    (Supreme Court, Appellate Term,
    March, 1897.)
    Divorce — Abatement of action — Alimony.
    The death of either of the parties to an action of divorce before decree abates the action and all proceedings in furtherance thereof, and an intermediate order for payment of alimony and counsel fee cannot be thereafter enforced.
    Appeal by defendant from judgment of the First District Court.
    Charles S. Sinsheimer, for appellant.
    Max Altmayer, for respondent.
   McAdam, J.

The action is by the plaintiff, as assignee of Max Altmayer, an attorney and counselor-at-law, to recover the sum ■of $50 under these circumstances. .

Altmayer was the attorney for the plaintiff in an action for absolute divorce- brought in the Supreme Court by his client Antonia Stein against her husband, the defendant herein, and applied for alimony and counsel fees to enable her to conduct her suit. The application, resulted in an order made July 15, 1896, providing as follows: “Ordered, that the plaintiff Antonia Stein be and she hereby is allowed the sum of ten dollars per week as alimony herein for the support and maintenance of herself and child for and during each week from the date- of this ■order until the final determination of this action. And it is further ordered that the plaintiff' Antonia Stein herein be allowed the further sum of fifty dollars as and for her expenses as counsel fees in conducting this action to its final determination. And it is further ordered that the said defendant Leo Stein pay to the plaintiff or her attorney, Mr. Max Altmayer, said sum of fifty dollars allowed to her as counsel fees herein within five days after the service of this order,- and that the said defendant also pay unto, the plaintiff or her attorney herein the said sum of ten dollars each and every week from the date of this order during the continuance of and until the final determination of this action as alimony allowed plaintiff herein for the support and maintenance of plaintiff and her child.” The sum sued for'.is the fifty dollars counsel fee allowed by the preceding order.

The order was served on the defendant July 15, 1896, and demand made on him for the, payment of the money; so that he was in default of payment after demand made on July 21st. The wife died July 24, 1896, and her suit for divorce in consequence abated. It is a personal action, and cannot be maintained after the marriage has been dissolved by death. 7 Ency. of PI & Pr. 123.

In McCurley v. McCurley, 60 Md. 189, the court said: “ It is well settled that .the death of either party to a divorce suit befoi’e decree, it being a personal action, abates the divorce proceedings; and this effect must extend to whatever is identified with those proceedings. The allowance of money to" pay the wife’s counsel fees is in furtherance of the procedure to obtain or prevent the divorce. When, therefore, the jurisdiction to pass a decree is ended, no jurisdiction can survive as to matters purely ancillary to that object.” See, also, Stanhope v. Stanhope, 2 Prob. Div. 103; Wilson v. Wilson, 73 Mich. 620; Nelson on Div., § 729a; 2 Bishop on M., D. & S. (ed. of 1891), § 687; 1 id. § 1420. In re Thrall, 12 App. Div. 237, where the wife sought to enforce after the termination of an action for limited divorce, an order for alimony previously made therein, the court said: “All intermediate preliminary and provisional orders necessarily fell when the action ceased to exist.”

The Supreme Court in the lifetime of the wife had power to enforce its. order both as to alimony and counsel fee (Code, §§ 1769, 1772), and lost it only by reason of' the abatement of the action. That said court was the appropriate one in which to enforce the order is apparent, particularly in view of the fact that it retained authority under section 1769 to modify the order to, suit the exigencies of the case.

The allowance of “ counsel fees herein,” as expressed in the order, was for conducting the action “to its final determination,” and lookedto the future, not the past. Beadleston v. Beadleston, 103 N. Y. 403, 405; McCarthy v. McCarthy, 137 id. 500. It is probable, therefore, that the Supreme Court would, in view of the dissolution of the marriage by the wife’s death three days, after the husband’s default^ have modified, its order by relieving the husband from the payment' either in whole or in part of the fee allowed for the future prosecution of the-action, when death made such prosecution impossible; for an order of the court, like a rule of law, should extend no further than the reason upon which it'proceeds. The authority of the attorney ceases with the client’s death. Wells on Attys., § 192; 1 Am. & Eng. Ency, of Law, 958. . i •

In Hopkins v. Hopkins, 21 Week. Dig. 174, an action against - the husband for divorce, an order was made that defendant pay to plaintiff or her attorney $50 for counsel fee therein, and the plaintiff’s -attorney undertook to enforce the order after the death of his client. The court held , that the action, had- abated,, and the order was -not enforcible.

In Lachenmeyer v. Lachenmeyer, 65 How. Pr. 422, it appeared that the defendant in an action for a limited divorce moved to vacate án order of arrest upon which he had been held. An order denying the motion was affirmed by the General Term, and an appeal to the Court of Appeals was dismissed, with costs. The remittitur upon the decision was received by the attorney June 22, 1892,. and on the. following day the . plaintiff -died. Judg"ment was allowed to be entered as of June 22, 1892, and it: was held that. as the judgment was exclusively for costs “ given, unqualifiedly ” the attorney was entitled to enforce their collection by execution for his own benefit. If the plaintiffs’ assignor had, prior to the death of his client, obtained such.a judgment he would, under the Lachenmeyer Case, have found his remedy in the Supreme Court. ’ The assignor had no such. judgment. He merely had an interlocutory order, which within certain limitations in-its discretion could be modified or enforced by the1 court, making it. Interlocutory orders in divorce suits and other- like proceedings of equitable cognizance are generally of -an elastic character, depending as to the degree'.of their enforcement on-what has been termed the conscience of the chancellor; unlike orders made in common-law actions, which are immutable.

In Higgins v. Callahan, 1 City Ct. R. 354; affirmed, 10 Daly, 420, it was held that an action would lie in the Marine Court to recover motion costs lawfully imposed- by orders of that ■ court where the same were not enforcible by precept, attachment or execution. But there is nothing in that case, or in McDougall v. Richardson, 3 Hill, 558, on which its decision was based, which goes to the extent of holding that interlocutory orders for alimony or counsel fees made by a superior court of record may be enforced even by action in - a court of inferior jurisdiction.

The plaintiff claims that the action may be sustained on the theory of necessaries furnished to the wife — a contention at least doubtful. Herrick v. Cately, 1 Daly, 512. But such is not the theory of the action. It is founded on the Supreme Court order, which declares that the $50 was allowed for counsel fees in conducting the divorce suit “ to. a final determination.” This contemplated the rendition of services in the future, which'the death of the wife, the plaintiff in the action, made impossible. The recovery was on the order and for the entire sum specified in it, without regard to the value of what had been done or would be done in the future, on the theory that the order itself furnished a right of action and fixed the amount of the recovery.

Being of opinion that the action is not maintainable even as one of debt under the former practice, inquiry into the question raised as to the jurisdiction of the court below, or as to whether under the order made arid by section 1769 of the Code the counsel fee belonged to the attorney, is obviated.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Daly, P. J., and Bischoff, J., concur.

Judgment reversed and new trial "ordered, with cos.ts to appellant to abide event. . ■  