
    CARRIE UHLMAN, Respondent, v. SIMON UHLMAN, Appellant.
    
      Decided March 2, 1885.
    
      Divorce—counsel fees—general principles as to discretion concerning—two counsel—restitution on modification of order—Appeal—what constitutes acceptance of benefit of order.
    
    When it does not clearly appear in an action for divorce that the wife has no case, or no defense, the court in the exercise of its discretion in granting an allowance should consider that in the end the party directed to pay may be shown to be right, and should provide as far as possible for such a contingency, and in so providing should find what has been and what will be the quantum and kind of litigation sufficient for the proper investigation of the issues.
    An allowance should not be made for two counsel, unless it is affirmatively shown that two are necessary.
    Where the order has been complied with by payment, the court, in modifjnng the order on appeal by reducing the amount ordered to be paid, will not direct the restitution or repayment of the excess. The modification does not give a right to such restitution, nor will the court direct that the excess be applied to compensation for subsequent services.
    The compliance with an absolute order to pay by making the payment does not fall within the rule applicable to the taking of a benefit under an order appealed from.
    Before Sedgwick, Ch. J., and O’G-okman, J.
    Appeal by defendant from order granting plaintiff an allowance for counsel fees and expenses ; and motion to dismiss the appeal.
    The action was for divorce, in which the defendant claimed affirmative relief.
    The facts appear in the opinion.
    
      Wetmore & Jenner, attorneys and of counsel for appellant,
    argued :—I. It is the fixed policy of the courts of this state, to allow the most moderate amounts for counsel fees, especially pendente lite, in actions of this kind, and to reduce them to the actual.necessities of the case to enable the wife to prosecute, or defend, otherwise an incentive would be given to a kind of litigation which is always, as far as possible, discouraged (Williams v. Williams, 29 Wis. 517 ; Morrell, 2 Barb. 483 ; De Meli, 67 How. Pr. 53 ; Leslie v. Leslie, 11 Abb. Pr. N. S. 311).
    II. The court has authority, in an action for a divorce, to grant a counsel fee to the successful party upon the termination of the trial (Bently v. Bently, 3 Law Bull. 76, Truax, J.; De Meli v. De Meli, 67 How. Pr. 35). The Code, section 1769, authorizes the court, in its discretion, during the pendency of such an action, from time to time, to make and modify orders requiring the husband to pay money necessary to enable the wife to carry on and defend the action. This has been construed to authorize an allowance, not only before trial, but at and after trial. The action is pending necessarily until final decree (Winton v. Winton, 12 Abb. N. C. 150; Donnelly v. Donnelly, 63 How. 481 ; Green v. Green, 3 Daly, 358 ; Schloemer v. Schloemer, 49 N. Y. 82; McQueen v. McQueen, 61 How. 280). After the trial of this action is finished, and the case decided, the merits will have been determined, and the court then can award counsel fees which will be just, accordingly as the prosecution or the defense has been ascertained to have been in good faith.
    III. In opposition to the motion to dismiss the appeal, it is urged that the payment of the sum was no bar to the appeal. The order appealed from simply directs the payment, by defendant to the plaintiff, of a sum of money which he claims is altogether in excess of what it should be. He receives no benefit under the order ; it is wholly adverse to him ; no conditions are imposed in his favor which he has accepted, and the reversal of the order would present nothing but the ordinary case of the reversal of a purely money judgment (Schermerhorn v. Wheeler, 5 Daly, 472 ; Champion v. Plymouth Cong. Soc., 42 Barb. 411; Wells v. Danforth, 1 Code R. N. S. 415 ; Wallace v. Castle, 68 N. Y. 375).
    
      
      Richard S. Newcomb, attorney, and of counsel, and Chauncey S. Truax, of counsel for respondent,
    argued :— I. It appears, and was conceded, that the appellant is a man of large property, and in affluent circumstances ; that his property equals in value $200,000, and that his annual income is at least $17,000. The rule of law, that the wife should be placed upon an equality with the husband (2 Bishop Marriage & Div. § 387) is particularly applicable to this branch of these cases, because there have not in the entire history of this state arisen actions where greater efforts have been exerted, or more questionable fneans resorted to upon the part of the husband and his associates to accomplish the ruin of his wife. In view of these facts, the sum allowed to the wife to enable her to resist the charges, vigorously pressed, because of the great wealth at the husband’s command, is neither unreasonable nor immoderate (Forrest v. Forrest, 5 Bosw. 677 ; Griffin v. Griffin, 47 N Y. 134).
    II. This court, on appeal, will not modify the order of the special term, unless the amounts awarded are so excessive as to be beyond the scope of a legal discretion (Griffin v. Griffin, 47 N Y. 134 ; De Llamosas v. Same, 62 Ib. 618). The character of this litigation, and extent of the services rendered, make it proper and right that the plaintiff should receive the whole amount awarded her.
    III. In support of the motion to dismiss the appeal, it is urged that unless the defendant complied with this order, his proceeding could have been stayed and he could have been punished for contempt of court. The defendant complied with the terms of the order. A party cannot accept and act upon the terms of an order and also appeal therefrom (33 Super. Ct. 157; 4 Abb. Pr. 468; 1 Robt. 639 ; 4 E. D. S. 139). The order appealed from was in its effect a conditional order, the defendant cannot accept its terms and appeal from it at the same time (9 Q. B. 802 ; 16 L. J. Q. B. 49 ; 1 L. R. C. P. 238 ; 14 W. B. 614 ; 14 H. 7 N. S. 287 ; 5 Sand. 1). An appeal is waived by taking any benefit of the order appealed from, even if done under protest (6 Hun, 29 ; 18 N. Y. 481; 45 Ib. 201). We admit, that if the order had not in its effect been conditional, that then this motion would not be proper under the decision of 58 N. Y. 204, which held that a party who merely took steps to obtain a benefit, but who did not obtain his benefit, did not waive his right to appeal; that is not this case. The defendant had either to obey the order or take the consequences of disobeying the order, and he complied with the order. Furthermore, the order appealed from is not appealable (Green v. Green, 40 How. Pr. 465).
   By the Court.

Sedgwick, Ch. J.

Happily, families to the extent of a great majority of them, are not afflicted with the disorders that have made the subject of this action. Yet as a crime may be so frequent that a particular instance of it may properly be said to present no new feature, the conditions of this case are not new. They have been often investigated in courts of record, more often in police and district courts. There are no questions of law that need elaborate argument. The devices of cross-examination, peculiar to them, are familiarly known. They present no uncommon kind of action of human nature. There is the ordinary exaggeration of statements as to fact by the parties, and their partisan witnesses. If not specifically called upon by counsel to make proper deductions from this exaggeration, the tribunal would spontaneously make them. The proper forensic treatment of issues of this kind is so well known that, in a sense, it is mechanical. It is common experience that cases of this ldnd, in their beginning, have the appearance of presenting a great mass of matter for investigation, when a guarded and judicious treatment of them in the beginning, will show that the appearance is due to over-statement or mis-statement, and coloring, and that the issue turns upon a few points.

The plaintiff should claim enough to enable her to compensate counsel in ascertaining the material facts of the case. What cannot be successfully denied should not be the subject of protracted .litigation. There are many incidents in the case that call for the assertion that no provision should be made for legal services, excepting for those necessary to investigate the merits of the issues, and for none that may be used to protract litigation or to litigate for the gratification of animosity. When it clearly appears that a party has no case or no defense, a court may, in its discretion, refuse to make an allowance. When this does not clearly appear, the discretion of the court should consider that in the end the party directed to pay money may be shown to be in the right, and should provide, as far as possible, for such a contingency. In so providing, it should find what has been and what will be the quantum, and kind of litigation sufficient for the proper investigation of the issues. All cases should have regard to public policy. Each case makes a certain sort of precedent, and such precedent should be used in the light of the policy. It is further to be considered, that the plaintiff was bound to show affirmatively, why the employment of two counsel was necessary. One of them was the plaintiff’s attorney. As attorney, he would not be entitled, except under special conditions, to such an amount as one-half of the allowance would be. As counsel, there was not shown to be any necessity for another. The same is true of the associate counsel. Either of those gentlemen was fully able to conduct the litigation singly.

I am, therefore, of the opinion, that no greater allowance should have been made for services rendered up to July, 1884, than $1,500. If the defendant had done nothing under the order, it would be proper to proceed without further remark to modify it, in respect of the amount given by it. The defendant, however, has paid over under the order. It is suggested that this court has power to absolutely direct that the plaintiff repay the excess. My opinion is that the mere modification of the order does not give the defendant a right to such direction. To give the defendant a right to restitution, by order or by action, if indeed there is a right of restitution, depends upon facts outside of this record that will have to be considered with it, should any demand for restitution be made. The same may be said of a suggestion, that the order should be so modified as to apply the excess to compensation for services after July, 1884. Without any other modification than the reduction of the amount, certain results will follow, as to the effect of the order upon any subsequent proceeding on the part of plaintiff or of defendant. What that effect shall be, or whether there should be any effect, must be determined in any proceeding that may be hereafter taken.. The mere fact of payment under the order does not necessarily result in the defendant having no substantial interest in a modification by the reduction of the amount.

The payment by defendant was made the ground of a motion to dismiss the appeal, on the proposition that he thereby gained leave to compel plaintiff to proceed in the action, and for himself to proceed, and without payment he would not have had leave. The direction for payment was unconditional. If there had been no further proceedings, payment could have been enforced. The allowance regarded past proceedings. The right to proceed and to compel plaintiff were the consequences of the payment and formed no condition of the order to pay.

The motion to dismiss appeal is denied, without costs. The order appealed from is to be modified by reducing the amount of the allowance for expenses to $1,500, and as so modified, affirmed, without costs.

O’Gorman, J., concurred.  