Majority
p. 334Mary A. Pountney, App’lt, v. William Pountney, Resp’t. (Supreme Court, General Term, Second Department Filed May 12, 1890.)
Headnote
Divorce — Alimony—Extra allowance.Where an allowance for counsel fees has been granted to the plaintiff pending an action for divorce, the court has no power, after she has succeeded and before judgment, to grant an additional allowance.
Appeal from order denying plaintiff’s motion for an additional allowance by way of costs.
This action was for a limited divorce and the ¡issues were decided in favor of the plaintiff.
At the time action was brought plaintiff applied for and was allowed $100 counsel fees to prosecute the action. On final determination of the action plaintiff was awarded costs and disbursements of the action taxed at $190.40 and permanent alimony was fixed at fifteen dollars per week.
At the time the matter of alimony was being heard and considered by the court, counsel for the plaintiff made the application stated fpian extra allowance and the same was reserved by the court for consideration although at that time the court stated its doubt of power to grant the same.
Thereafter the court passed upon such application by a memorandum endorsed on findings as follows:
“ No further counsel fees can be allowed. See Beadleston v. Beadleston, 103 N. Y., 402 . W. B.”
C. E. Guddebaclc, for app’lt; John W. Lyon, for resp’t.
The plaintiff recovered a judgment for a limited, divorce with the costs and disbursements of action. There had been granted previous to judgment $100 for a counsel fee pending the litigation. The court on application denied a motion for an additional allowance upon the ground that no power existed in the court to make such an allowance in a divorce action, and citing Beadleston v. Beadleston, 103 N. Y., 402 ; 3 N. Y. State Rep., 634.
The case upholds the decision at special term. We think, how
p. 335
ever, in view of the fact that $100 counsel fee had been allowed and no further application made, that the $100 and the costs of the action were sufficient compensation to the plaintiff’s attorney for the trial of the issue in the action. Even if the court had the power to grant an extra allowance the case was not one where such an allowance was called for by anything disclosed by the appeal papers.
Order affirmed, with costs and disbursements.
Dykman and Pratt, JJ., concur.