PHILLIPS a. SIMMONS

PHILLIPS a. SIMMONS. Supreme Court, First District; Special Term, October, 1860. Husband and Wife.—Costs of Action fob Divorce. If a wife who is plaintiff in an action for divorce discontinues it, or is defeated in it, and judgment is rendered against her, her husband is not liable for costs incurred by her therein. Demurrer to complaint. The action was brought by plaintiffs, who were attorneys and counsellors at law, to recover for services and disbursements. The complaint stated that at a time named, the plaintiffs, on the retainer of the wife of defendant, commenced an action in her favor against the defendant, for a divorce on the ground of cruel and inhuman treatment, and for some months acted as attorneys and counsel for her in that action, when the parties thereto became reconciled and settled the action, and have ever since been, and are living together as man and wife; that .their services as such attorneys and counsel for the wife were reasonably worth two hundred and-fifty dollars, and they expended in carrying on that suit forty-one dollars and seventy-four cents; and that there was due and owing to plaintiffs from defendant two hundred and fifty-seven dollars and seventy-four cents, for which, with interest and costs, they demanded judgment. The defendant demurred to the complaint. P. Cantine, in support of the demurrer. Plaintiffs, in person, opposed. [MAJORITY — Bonney, J.] Bonney, J. The defendant must have judgment on this demurrer. I can see no possible ground for maintaining the action. Surely a wife cannot be considered (as plaintiffs have attempted to argue) the agent of her husband, with authority to commence an action against himself, perhaps without cause, and afterwards discontinue it, and thereby make him liable to her attorneys for the costs of the action. While an action for divorce is pending, a wife may, in a proper case, obtain an order that her husband furnish her with means for carrying it on; but when the wife is plaintiff in such an action, and has either discontinued it or been defeated, and judgment been rendered against her, neither she nor her attorneys or counsel can have any claim upon him for the costs or expenses of her fruitless and probably causeless prosecution. Shelton a. Pendleton (18 Conn., 417); Wing a. Hurlburt (15 Verm., 607) ; Dorsey a. Goodenow (Wright's R. (0.), 120), are authorities for this decision. Judgment for defendant.