Violet M. Turner, Respondent, v. Herbert G. Woolworth, Appellant, Impleaded with Martha G. Woolworth, Defendant

Violet M. Turner, Respondent, v. Herbert G. Woolworth, Appellant, Impleaded with Martha G. Woolworth, Defendant. Second Department, November 1, 1912. Husband and wife—alimony — husband’s liability for counsel fees — when attorney may not advance wife money for necessaries — collusive settlement of decree awarding alimony — action by attorney against husband. In an action for absolute divorce an allowance of counsel fees for the wife’s attorney limits the husband’s liability therefor. Where in a matrimonial action the wife has obtained a decree for alimony for her support, her attorney cannot advance money to her for necessaries and recover the amount from the husband. While the attorney might make advances to the wife upon the faith of the decree for alimony, his complaint in an action to recover against the husband should show his right of subrogation, or to a hen, and also notice to the husband. Where after a decree charging a husband with alimony, he and his wife make a collusive agreement whereby the alimony is released, the attorney for the wife may maintain an action against the husband for allowances made to him and to recover the costs upon which he has a hen. Under such circumstances, the judgment being satisfied pursuant to a clandestine agreement, the attorney is not restricted to redress by motion under section 779 of the Code of Civil Procedure, but is entitled to maintain an action. Appeal by the defendant, Herbert Gf. Woolworth, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of June, 1912, denying the said defendant’s motion for judgment on the pleadings. Arnold L. Davis, for the appellant. Alexander S. Bacon, for the respondent. [MAJORITY — Thomas, J.:] Thomas, J.: The plaintiff, as the assignee of Mr. Bacon, sues for legal services and money advanced to Mrs. Woolworth while she was the wife of Herbert Gr. Woolworth. The services, as alleged, were rendered in the successful defense of the wife in an action for absolute divorce brought by the husband, wherein Bacon acted as counsel; for the successful prosecution as attorney for the wife of an action for separation, and for money advanced by Bacon individually to the wife for necessities. In the separation action, $400 counsel fees were allowed to the attorney, the costs taxed were $207.02, the judgment provided for $1,580 accrued alimony and for the further pay,ment to. her of $30 per week. The complaint does not show whether an allowance was made for counsel fees in the action for absolute divorce. If there were such allowance, the amount thereof is the limit of the- husband’s liability to the wife’s attorney and counsel (Naumer v. Gray, 28 App. Div. 529; Damman v. Bancroft, 43 Misc. Rep. 678, but by authority of Naumer v. Gray (supra) and Hays v. Ledman (28 Misc. Rep. 575) it is concluded that recovery for such services cannot be had. It. is not shown at what times and for what specific purposes advances of money for necessaries were made, nor that the money was used in supplying necessities. The husbahd would not support his wife, neither would he pay the sum designated by the court for her support. Bacon supplied the husband’s failure by advancing money, and on occasions a remedy for advances has been found. (Kenny v. Meislahn, 69 App. Div. 572; Wells v. Lachenmeyer, 2 How. Pr. [N. S.] 252.) But when the wife moves the court for direction for payment of money for support, her attorney should not he permitted to provide her with necessaries or money to buy necessaries, as if no provision had been judicially made, and recover therefor. (Damman v. Bancroft, supra.) The alimony was the fund from which. she was supportable, and advances to the wife could be made upon the faith of it, but facts should be shown in the complaint establishing right of subrogation or to a lien, and notice thereof to the husband. The present complaint is entirely insufficient. But it is shown in the complaint that in an action instituted at Bacon’s instance in Massachusetts on the judgment of separation, all the recovery for money decreed was released by a collusive agreement (made a part of the complaint) between the parties without Bacon’s knowledge, and it is alleged that the judgments and orders have been satisfied of record. But the complaint alleges .that before such settlement was effected, notice of Bacon’s lien as attorney upon the “judgment and orders, and all moneys due thereunder,” was served on the husband. In such case the attorney may maintain an action for allowances and for the recovery of such sum as he had a lien on the costs, or other attorney’s lien. The scanty statement in the complaint precludes precise decision. It is urged by appellants that the attorney should collect the money due him by motion under section YY9 of the Code of Civil Procedure, which permits execution against personal property. But the judgment is satisfied pursuant to a clandestine agreement between the judgment debtor and creditor, tending or purposed to defraud the attorney or to defraud him of his usual opportunity, and in such case at least the attorney should be permitted to bring before the court the parties and obtain what under the judgment and his relation to his client he is entitled to have. The order should be affirmed, with ten dollars costs and disbursements. Jenks, P. J., Carr, Woodward and Rich, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.