
    SUPREME COURT.
    Luella Chase, respondent, agt. John C. Chase, appellant.
    
      Attorney—Action by wife against husband for separation—Settlement by parties—Claim foi'counsel fee by attorney for wife, how enforced against husband—Costs.
    
    In an action "by wife for a separation from her husband for cruel and inhuman treatment, after issue had been joined the wife returned to live with her husband, and the plaintiff’s attorney, in the name and behalf of the wife, made a motion for an order compelling the defendant to pay the attorney for plaintiff a counsel fee for his services in ■ the action:"
    
      Held, that the attorney had mistaken his remedy. Before the settlement can be set aside or treated as fraudulent, some good reason therefor must be shown, and the plaintiff herself is entitled to notice of any application for such purpose:
    
      Held, further, that if the attorney as such has any claim for counsel fees or costs upon the defendant, he must, in his own behalf, notice his motion or bring Ms action to enforce such claim.
    When no costs are asked for in the notice of motion none should be allowed.
    
      Fourth Department, General Term,
    April, 1883.
    
      Before Smith, P. J., Hardin and Barker, JJ.
    
    Appeal from an order of Oneida special term, allowing twenty-five dollars as counsel fee and ten dollars costs of motion.
    
      
      E. W. Hisley and A. 0. Woodruff, for appellant/
    
      D. E. Powers, for respondent.
   Hardin, J.

This action was brought by the wife for a separation from her husband, upon the ground of alleged cruel and inhuman treatment. An answer was served September 29, 1882. On the 15th of October, 1882, the wife returned to live with her husband, and has since continued to live with him as his wife. October 16, 1882, the plaintiff’s attorney, in the name and behalf of the wife, noticed a motion for an order allowing the plaintiff’s attorney a counsel fee for his services in the aforesaid action.” On the 24th of October, 1882, the motion at Oneida special term was heard, and an order was granted “ that defendant pay plaintiff’s attorney a counsel fee of twenty-five dollars, and ten dollars costs of motion, in all the sum of thirty-five dollars,” and then after ten days process issue for the collection thereof, if not paid in that time by defendant.

Defendant a23peals from the order. The attorney has mistaken his remedy. The settlement by the 23arties is not shown to be in bad faith, with intent to defraud the attorney. Such settlements are favored by the policy of the law.

Before the settlement can be set aside or treated as fraudulent, some good reason therefor as between the 23arties must be shown, and the plaintiff herself is entitled to notice of any application for such purpose (Dimick agt. Cooley, 16 Weekly Dig., 115; Murray agt. Jibson, 22 Hun, 386). “"So far as she is concerned it is a bar to her further prosecuting the action or suing again for the same cause whatever remedy the attorneys may be entitled to in their own behalf” (Opinion of Smith, p. 388; see, also, Jenkins agt. Adams, 22 Hun, 600; Gaddard agt. Trenbath, 24 Hun, 183).

If the attorney, as such, has any claim for counsel fees or. costs rvpon the defendant, he must in his own behalf notice his motion or" bring his action to enforce such claim. Besides there is no 2>roof that the wife is not able pecuniarily to satisfy any liability she may have incurred by reason of her employment of the attorney. No costs should have been allowed in the order as they were not asked for in the notice of motion.

Order reversed, without costs.

. Smith, P. J., and Barker, J., concurred.  