
    Robert P. Beyer, Appellant, v. Henry C. Hadden, Respondent.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Municipal Courts — Jurisdiction — Municipal Court — Matters incidentally in issue.
    The Municipal Court of the city of New York has jurisdiction to entertain an action against a husband for legal services rendered the wife in an action brought by her for a separation, although, in order to maintain the action, the plaintiff must prove, as an incident, such facts as would be required to maintain an action in the wife’s favor against her husband for a separation.
    Appeal from a judgment of the Municipal Court of the city of New York, seventh district, borough of Manhattan, sustaining the defendant’s demurrer to the amended complaint of the plaintiff and dismissing the said complaint with costs.
    
      Robert P. Beyer, appellant in person.
    John W. Remer, for respondent.
   Hendrick, J.

The wife of the defendant instituted an action against her husband for a separation, upon the ground, substantially, of cruel and inhuman conduct. During the pendency of this action, she was, upon motion made in the Supreme Court, allowed the sum of seventy-five dollars counsel fee to be paid to her attorney, this plaintiff. Subsequently, the husband and wife became reconciled and the action was discontinued. The plaintiff thereupon brought this action against this defendant to recover for the value of his services as attorney in the separation action rendered to the wife. The complaint set forth the foregoing facts, and the defendant demurred thereto, upon the ground, mainly, that the Municipal Court had no jurisdiction over the subject-matter of the action. The demurrer was sustained in the lower court and the complaint dismissed. It is conceded by the respondent that, if the action had been brought in a court of competent jurisdiction, it would lie. The contention of the defendant being, that, as the plaintiff, in order to succeed in this action, must prove affirmatively that the wife was justified in bringing her action, and that the conduct of the husband was such as to render its institution and prosecution, if not necessary, at least reasonable and proper, the Municipal Court had no power to review and pass upon such testimony, the action being one cognizable only in equity. The plaintiff’s cause of action in this case is upon an implied contract, and is based upon the theory that the plaintiff’s services were necessary services which the wife had authority, as agent for her husband, to obtain. While it is true that, in order to maintain this action, the plaintiff must prove that the wife had just cause for a separation, such proof is a mere incident to the cause of action itself, and the Municipal Court has power to pass upon its sufficiency. The case cited by the appellant herein, Bell v. Gittere, 30 N. Y. St. Repr. 219, in support of his claim, seems to be an authority against it. The court in that case was asked to pass upon the question whether or not a County Court in an action for partition, in which the complaint also asked for the cancellation of certain deeds, had jurisdiction to render a judgment. The County Court had jurisdiction in an action for partition, but had no jurisdiction in an action to cancel a deed in the first instance. The court held that jurisdiction to tryactions in partition being conferred, and title being one of the issues appropriate to and embraced within such action, it may be determined without invoking any other powers than such as are expressly provided for.” In the case at bar, the Municipal Court has power to try and determine actions upon contract. The allegations of the complaint are such as are embraced within the character of an action which may be tried in the Municipal Court, and that it may become necessary for the plaintiff to offer testimony which would be equally necessary in an action of which the Municipal Court would have no jurisdiction in the first instance does not preclude its consideration in support of a cause of action which the court is clearly authorized by statute to entertain. It follows that the demurrer was not well taken and must be overruled.

Judgment reversed and demurrer overruled, with leave to the defendant to plead over within five days, upon payment of costs in the court below and in this court.

Giegerich and Ford, JJ., concur.

Judgment reversed and demurrer overruled, with leave to defendant to plead over within five days, upon payment of costs, in court below and in this court.  