(Supreme Court, General Term, First Department.Headnote
Divorce—Allowance of Counsel Fees.In a suit for divorce, where it has been decided that the wife is entitled to the divorce, but the question of alimony is still undetermined, and further services of counsel will be necessary to perfect the judgment and conduct future litigation, and the wife has no means for that purpose, the court has power to grant an allowance by way of counsel fees.
Appeal from special term.
This action was brought by Josephine McBride against R; T. McBride, to procure a judgment of limited divorce on the ground of cruel treatment. The action was brought to trial before a jury, at a circuit court, which found in favor of plaintiff on some of those issues, and against her on others. The case was thereafter brought on for final hearing before Mr. Justice Barrett, at a special term of the court, upon the findings of the jury and the testimony taken upon the trial. The justice at special term wrote an opinion to the effect that defendant had been guilty of cruel and inhuman treatment, as charged by plaintiff. Only a part of the issues in the case, viz., those relating to the cruel conduct of defendant, were submitted to the justice at that time; the remainder, viz., those relating to the amount of alimony, etc., were reserved to be tried at a future date. Afterwards the trial was resumed, and at that time plaintiff made a motion for an allowance to enable her to prosecute the action to judgment, and to contest the appeal which was threatened by defendant. The justice granted said application; holding that, in order to prosecute the action to j udgment, and to pay for future services in the action, it was necessary that she should have an allowance to pay for past services and services to be rendered. The amount allowed was $2,500. ISfo judgment has been entered in the action, nor have any findings been signed. From the order made on this decision the defendant appeals.
Argued before Van Brunt, P. J., and Brady, J.P. Stevenson, for appellant. S. G. Adams, for respondent.
The allowance granted herein by way of counsel fees to the plaintiff does not seem to us to be at all excessive, provided the court had the power to make provision for any compensation to her counsel. It is claimed that under the rule laid down in the case of Beadleston v. Beadleston, 103 N. N. 402, 8 N. E. Rep. 735 , no allowance whatever can be made in this case. The rule laid down is certainly a very strict one, and calculated to work great injustice to a wife who has been successful in an action of divorce, because, if the construction to be put upon the decision which is claimed by the appellant is the true one, where a wife has been denied counsel fee because of the showing made against her by affidavits, upon an application for counsel fee, although she may succeed upon the trial, where witnesses are examined in