Van Wormer v. Van Wormer — 11 N.Y.S. 247

Majority

p. 247

Van Wormer v. Van Wormer.

(Supreme Court, General Term, Third Department.

September 25, 1890.)

Headnote

Divorce—Alimony and Costs—Stipulations.

On payment to the attorney of the wife, who was defendant in an action for divorce, of a sum agreed on as counsel fees, the attorney stipulated that no application for further counsel fees or alimony should be made “until the result of this action is reached. ” At the trial of the cause, the jury disagreed. Held, that the stipulation was not a bar to an application for a payment by the husband for the wife’s expenses at the next trial. '

Appeal from special term, Schenectady county.

Action by Henry Van Wormer for divorce from his wife, Georgiana Van Wormer. From an order that plaintiff pay to defendant the sum of $150 for expenses incurred and to be incurred by her in the defense of the action, plaintiff appeals.

Argued before Learned, P. J., and Landon and Mayham, JJ.

W. L. Van Denbergh, for appellant. R. J. Sanson, for respondent.

This is an action for divorce. After issue had been joined the plaintiff’s attorney paid to defendant’s attorney $100, and took the following receipt: “[Title of the cause.] Received October 17, 1889, from plaintiff, by the hands of W. L. Van Denbergh, his attorney, one hundred dollars, being the sum agreed on as my counsel fees, and upon the agreement that no application shall be made for other or further counsel fees or alimony until the result of this action is reached. Robert J. Sanson, Defendant’s Attorney.” Subsequently the cause was tried, and the jury disagreed. The defendant then moved that plaintiff be required to pay a sum needed for her expenses at the next trial. The special term granted $150 for such expenses. The plaintiff appeals.

The only question before us is whether the receipt is a bar to an application for money to meet these further expenses. There is no reason to doubt the propriety of the order, unless the court ought to have refused it upon the ground of the agreement contained in the receipt. It is a question on which there may be some doubt, as it depends principally on the meaning to be gathered from the receipt under the circumstances. Of course courts always desire to compel the performance of stipulations by attorneys in matters within their power; but we are inclined to think that the possibility of a disagreement of the jury was not within the thoughts of the parties. The expenses of the first trial appear to have been somewhere about $150; and therefore we cannot think that the attorneys contemplated a second trial, made necessary by a disagreement of the jury, when they fixed the counsel fees at $100. In speaking of “the result of the action” they probably thought of a trial, a verdict, and a judgment; and supposed that $100 would or might be enough to enable the defendant to litigate the action with justice to herself. The unexpected increase of expenses by the disagreement of the jury has changed the situation; and we think it would be unreasonable to give to the receipt the controlling effect which plaintiff claims for it. True, it may be capable of that meaning; but a more fair and just view is to understand that a disagreement of the jury was not anticipated, and therefore that it was within the

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power of the special term to give the allowance. Aside from these considerations, there is no reason to say that the special term did not exercise a proper discretion. The order of the special term is affirmed, without costs to either party. All concur.