N. Y. Supreme Court, First District; Special Term,Headnote
Divobce.—Alimony.—Additional Counsel nee antee ninal Judgment.After judgment in favor of plaintiff, in an action by a wife, for a limited divorce, and pending an appeal by defendant from a part thereof, the court may allow plaintiff a counsel fee in addition to the amounts theretofore allowed.
Action for limited divorce. Motion to require defendant to pay plaintiff’s attorney a further allowance by way of counsel fee.
No answer to the complaint was interposed by the defendant, and on plaintiff’s motion, the court fixed the alimony pendente lite and awarded a counsel fee, which defendant paid. Reference of the action was then proceeded with, and a report rendered recommending a j udgment of limited divorce, and fixing the amount of alimony. The court refused to confirm the report as to alimony and an order was entered overruling that part from which defendant appealed to the • general term, where the order appealed from was affirmed. After further proceedings in the action, plaintiff moved for an additional allowance to her counsel, which was granted. ■ Subsequently judgment was entered and permanent alimony fixed. After various proceedings involving a reargument and resettlement of the decree, defendant" appealed from the part fixing permanent alimony, and the amount was reduced by the general term. Defendant then took a further appeal to the court of appeals, pending which this motion for additional counsel fee was made.
Edward P. Wilder, for motion.
B. F. Sawyer, opposed.
The case reported as Anonymous in 15 Abb. Pr. N. S., 307, is an authority in favor of the position taken by the plaintiff’s counsel on this motion. See the opinion of Justice Davis in that case. In the case of Kamp v. Kamp ( 59 N. Y. 212 ; rev’g 37 Super. Ct. [J.& S.] 241), referred to by the defendant’s counsel, final judgment had not only been entered, but application was made many years after such entry for further alimony, and it was held that the power of the court had terminated, and the application was denied. In this case the defendant, being dissatisfied with the judgment, has taken an appeal therefrom, and, if he is right, it cannot be said that there is at present a final and conclusive judgment. By his appeal he obliges the plaintiff to employ counsel to argue her case and to protect her rights. I think in such a case that she is entitled to a reasonable counsel fee, and I shall there: fore allow her the sum of $250, in ddition to the amounts heretofore allowed to her.