Van Wormer v. Van Wormer — 33 N.Y. St. Rep. 31

Majority

p. 31

Henry Van Wormer, App’lt, v. Georgiana Van Wormer, Resp’t.

(Supreme Court, General Term, Third Department,

Filed September 25, 1890.)

Headnote

Divobcb—Alimony—Bab.

After issue joined in an action of divorce plaintiff's attorney paid to defendant’s attorney $100 for counsel fees and took a receipt which stated that the payment was “upon the agreement that no application shall he made for other or further counsel fees or alimony until the result of this action is reached.” A trial was had and the jury disagreed. The defend

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ant applied for a further allowance to meet the expenses of another trial and this was granted. Held, that a disagreement was not within the contemplation of the parties when the receipt was executed and that the receipt was not a bar.

Appeal from an order at special term granting plaintiff a further allowance for expenses of a second trial of an action for divorce about to be had.

W. L. Van Denbergh, for app’lt; B. J. Sanson, for resp’t.

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) :

“ Eeceived October 17, 1889, from plaintiff by the hands of W. L. Yan Denbergh, his attorney, one hundred dollars, being the sum agreed upon 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.

“Egbert J. Sanson,

“ Defendants 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 attorney 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 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.

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The order of the special term, is affirmed, without costa to either party.

Landon and Mayham, JJ., concur.