McQuhae v. Rey — 52 N.Y. St. Rep. 484

Majority

p. 484

John C. McQuhae, App'lt, v. Samuel Rey, Resp't.

(New York, Common Pleas, General Term,

Filed May 8, 1893.)

Headnote

Husband and wife—Services rendered to wife in proceedings for NON-SUPPORT.

A. husband cannot be held liable for legal services rendered to his wife in proceedings to compel him to support her, in the absence of proof that such services were necessary for the institution and proper prosecution of such proceedings. The wife’s right to be represented by counsel in such . proceeding does not alone determine the husband’s liability for the expense of counsel fees incurred by her, but the necessity therefor must be shown.

p. 485

Appeal from a judgment of the general term of the city court of New York, which reversed a judgment for plaintiff at trial term of the same court and awarded judgment absolute for defendant for dismissal of the complaint with costs.

Action to recover for services alleged to have been rendered by plaintiff’s assignor, an attorney and counsellor at law, in and about the prosecution of proceedings to compel defendant to provide for his wife’s support, at the request of the wife. See Consolidation Act, Laws 1882, chap. 410, §§ 1454-1457; Code of Criminal Procedure, § 899.

L. A. Gould, for app’lt; Fromme Bros., for resp’t.

We are of the opinion that this cause was properly disposed of by the general term of the court below and that its judgment should be affirmed.

Incidentally the wife may be the only person who derives any immediate advantage from proceedings instituted before a police magistrate under the provisions of §§ 1454-1457 of the consolidation act, Laws 1882, chap. 410, and § 899 of the Code of Criminal Procedure, to compel the husband to provide for his wife’s support; but primarily such proceedings are instituted and prosecuted by and in behalf of the people to secure indemnity from the husband for the expense of the wife’s support, to which they have been or may be subjected because of his failure to provide her with sufficient means. Her status in such proceedings is that of a witness only.

Nor does the wife’s right to be represented by counsel in the prosecution of the proceedings alone determine the husband’s liability for the expense of counsel fees incurred by her. Assuming that she has the right, it still remains to show that the services of private counsel employed by the wife were necessary for the institution and proper prosecution of the proceedings. That she deemed it prudent to seek advice from and to be represented by counsel of her own selection still falls short of proving that it was necessary for her to do so.

In the case at bar, it appears unchallenged that the proceedings were instituted and prosecuted by the commissioners of charities and corrections in the city of New York, who, for that purpose, were exclusively represented by an assistant corporation attorney of said city, the latter being thereunto legally designated. Not a scintilla of evidence is apparent from the record from which the necessity for the employment of private counsel by defendant’s wife for the purposes of the prosecution may be inferred, and upon that ground each of the cases cited by appellant’s counsel in support of the contention that plaintiff is entitled to a recovery is distinguishable from the present.

Justly to subject the husband to the payment of debts contracted by his wife, it must appear not only that the goods supplied or the services rendered were of a kind usually called “ necessaries ” from the fact that their need is general, but that they were reasonably required in .the particular instance for

p. 486

which the husband is sought to be held. Bloomingdale v. Brinck erhoff, 49 St. Rep., 142 .

J udgment of the general term of the court below affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.