
    Grauer v. Grauer.
    (New York Common Pleas
    General Term,
    December, 1892.
    In an action for divorce, the husband counterclaimed for a separation; the wife obtained an order awarding her a counsel fee, which on appeal was reversed. Plaintiff gave evidence in opposition to the counterclaim but her complaint was dismissed on her own case. The husband moved ex parte for a restitution of the counsel fee which had been paid. Held, that the motion should he denied, as no case for restitution had been made; not against the wife, because she was not a party to the proceeding; not against her attorneys, because in legal contemplation the husband had paid them no money, but if he had, no legal duty rested upon them to restore it.
    
      Applioatiow for restitution of counsel fee paid-under order of court, in an action for divorce. The opinion states the case.
    
      Mr. Trum, for the application.
    
      Mr. Nermeson, in opposition.
   Pryor, J.

The wife sued the husband for a divorce; the husband counterclaimed for a judicial separation, and in the action an order was made awarding the plaintiff $150 counsel fee. On appeal to the General Term the order was reversed, because the moving papers showed no ground for it.

Upon the order of reversal the defendant now applies to the court for restitution of the counsel fee.

It appeal’s that no notice of the motion has been served on the plaintiff, and that the counsel fee has been partly expended for her benefit in the prosecution of the action and in resistance to the counterclaim. The action was tried, and resulted in a dismissal of the complaint on the plaintiff’s own ease, but this not until she had given evidence in opposition to the counterclaim. The decree denies a divorce to the plaintiff, without adjudicating the counterclaim, the benefit of which it reserves to the defendant in a future action.

The question whether in an action for divorce the defendant husband may ever "claim restitution of a counsel fee paid under order of court, we need not now decide ; because upon the facts apparent on the application, no case is presented for such restitution. The counsel fee, no matter to whom actually delivered, was, in legal effect, paid to the wife, and a restitution of it would be restitution by her. Oases, infra,. But, she- has had no notice of this motion ; and without her day. in court, she cannot be compelled to pay money for any purpose.

The legal effect being, that the wife received the money and disbursed it to her attorneys upon them retainer, they are under no obligation to return it. Langley v. Warner, 3 N. Y. 327; Wright v. Nostrand, 53 N. Y. Super. Ct. 381.

The services of the attorneys of the wife, in recompense of which the counsel fee was allowed, were rendered, not merely in prosecution of her suit for divorce, hut in defense of the husband’s cross-suit for judicial separation ; and that has not been determined.

Upon the whole we are clearly of opinion that no case for restitution is made ; not against the wife, because she is not a party to the proceeding ; not against her attorneys, because, in legal contemplation, they have been paid no money by the applicant; but if they have, no legal duty rests upon them to restore it.

Application denied; but without costs, as it was preferred on the suggestion of the court.

Daly, Ch. J., and Bisohoff, J., concur.

Application denied.  