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ALIMONY AND COUNSEL FEES IN ACTION FOR SEPARATION,--continued.

A referee directed to determine whether any, and if any, what alimony and counsel fees ought to be awarded the plaintiff and to report the facts found and his opinion thereon, has only power to take the evidence and to report it to the court with his opinion.

Ward v. Ward, 29 Abb. N. C. 256; 21 Supp. 795.

2. Institution of proceedings.

An application for alimony pending the action may be by motion therein, as well as by petition.

Kirsch v. Kirsch, 45 St. Rep. 287; 18 Supp. 447.

But prior to the adoption of the Code of Civil Procedure such application was required to be by petition only.

Berthrong v. Berthrong, 1 Code R. 115.

Kirsch v. Kirsch, 45 St. Kep. 287; 18 Supp. 447.

Wait's Practice, Vol. 5, p. 736.

Under § 1769, Code of Civil Procedure, the allowance of counsel fees must be made on special motion, and not by the final judgment in which only provision for "costs" is authorized.

Williams v. Williams, 17 Civ. Pro. 297; 25 St. Rep. 183; 6 Supp. 645; Aff'd in 130 N. Y. 193; 41 St. Rep. 280.

Percival v. Percival, 28 Week. Dig. 155; 14 St. Rep. 255; Aff'd 124 N. Y. 637; 35 St. Rep. 340; 3 Silv. Ct. App. 346.

Straus v. Straus, 67 Hun, 491; 50 St. Rep. 845; 22 Supp. 567.

Service of an order to show cause why a person adjudged to pay alimony should not be punished for contempt may be made upon his attorney, where he has appeared in the action and final judgment has not been entered. Mahon v. Mahon, 50 Super. 92.

3. Appeal.

Unless the discretion of the court of original jurisdiction is abused, an order granting alimony and expenses is not reviewable by the court of appeals.

De Llamosas v. De Llamosas, 62 N. Y. 618.

Green v. Green, 3 Daly, 358; 40 How. Pr. 465.

On appeal to the court of appeals from an order granting alimony pendente lite, the only question reviewable is that of the power in the court below to make the order.

Kennedy v. Kennedy, 73 N. Y. 369.

But if the facts stated in the complaint are clearly not sufficient, if true, to constitute a cause of action, an order allowing temporary alimony will be reversed on appeal. Id.

An order of the supreme court granting alimony and counsel fees is discretionary, but is reviewable upon an appeal to the appellate division.

Patterson v. Patterson, App. Div. 146; 74 St. Rep. 502; 38 Supp. 637.

ALIMONY AND COUNSEL FEES IN ACTION FOR SEPARATION,-Continued.

An order reducing the alimony awarded in a judgment of separation from $20 to $10 per week, made upon a referee's report, in which the referee stated that the defendant was financially unable to pay any alimony, will not be disturbed on appeal when it appears that the fees, etc., in seeking to reduce the alimony amount to enough to pay all alimony directed to be paid by the order.

Kabatchnick v. Kabatchnick, 26 App. Div. 292; 83 St. Rep. 612; 49 Supp.

612.

An order denying an attorney counsel fees, upon the discontinuance of an action for separation, may be appealed from by him under § 1294, Code of Civil Procedure, although he is not a party to the action.

Louden v. Louden, 65 How. Pr. 411.

Upon an appeal from an order allowing and fixing an amount for temporary alimony, the court, it seems, may order a reference to ascertain what allowance therefor is suitable.

Galinger v. Galinger, 4 Lans. 473; 61 Barb. 31.
Forrest v. Forrest, 25 N. Y. 501.

MOONEY v. MOONEY.

CITIZENS' SAV. BANK v. MOONEY et al.

[29 Misc. 707; 96 St. Rep. 769; 62 Supp. 769.] (Supreme Court, Special Term, New York County, December, 1899.)

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ATTORNEY'S LIEN-MONEY IMPOUNDED TO SECURE ALIMONY.

Where the attorney for a divorced wife secured an order requiring the

NOTE. ATTORNEY'S LIEN ON ALIMONY.

In Branth v. Branth, 19 Civ. Pro. 28; 32 St. Rep. 979; 10 Supp. 638, Brady, J., said, "The alimony, however, although it be obtained by assignment, cannot be secured by the plaintiff's attorneys. It was intended for the support of the party to whom it was given, and the greater the necessity for such an allowance the greater the reason why the courts should discountenance its appropriation for any other purpose. The counsel must rely upon the costs and counsel fec awarded for his compensation, and therefore no claim to the alimony or any part of it, or to the enforcement of it by any process issued or otherwise, can enure to the benefit of her attorneys."

An attorney's lien attaches to alimony which has come into his hands. Ex parte Bremmer, L. R., 1 P. & D. 254.

VII. N. Y. A. C.

17

[Dec.

Special Term.

husband to deposit one-third of the surplus arising from a foreclosure sale of his property with the chamberlain to secure her right of dower, and also to deposit a sum to secure the payment of alimony, he is not entitled to a lien on such funds for his services, the funds not being the property of his client.

Action by Catherine Mooney against James Mooney and by the Citizens' Savings Bank against James Mooney and others. The defendant Mooney moves for the vacation of an order under which the chamberlain holds certain money deposited to secure the payment of alimony. Motion granted.

Robert W. Todd, for the motion.

Henry Schmitt, opposed.

SCOTT, J. In May, 1887, Catherine Mooney obtained, in the late court of common pleas, a decree of separation against her husband, James Mooney, and was therein awarded alimony at

ATTORNEY'S LIEN ON ALIMONY,-continued.

This case was cited by Follett, J., in Stevenson v. Stevenson, 34 Hun, 157, in which it was held that alimony could be reached by creditors of the wife by supplementary proceedings and that alimony was not exempt as a fund held in trust under § 1879 and § 2463 of the Code of Civil Procedure.

In Weill v. Weill, 18 Civ. Pro. 241; 10 Supp. 627, the attorneys for the plaintiff, who had a decree of separation with an award of alimony, instituted a proceeding to punish the defendant for contempt in failing to pay the alimony. It appeared that the parties had become reconciled and they swore that the alimony had been paid, or at least satisfied as between the parties without the consent of the plaintiff's attorneys.

Andrews, J., said: "I am not referred to any case in which it has been held that an attorney has a lien upon the alimony awarded to the wife by a final judgment rendered in her favor, in an action for a separation.”

The motion to punish for contempt was denied.

An agreement between a plaintiff, in an action for a separation, and her attorney, that the latter shall have a percentage of the alimony awarded to her in the action is void as against public policy.

Van Vleck v. Van Vleck, 21 App. Div. 272; 81 St. Rep. 470; 47 Supp.

470.

Van Vleck v. Van Vleck, 21 App. Div. 631; 81 St. Rep. 472; 47 Supp. 472.

1899]

Mooney v. Mooney.

the rate of $80 a month. After a few years the husband ceased to pay this alimony with regularity, until, in 1894, he was in default several hundred dollars. The wife then employed an attorney, by whose efforts the payment of the unpaid alimony was enforced. The husband then made a motion for a reduction of the alimony, the motion was opposed by the wife's attorney, and a reference ordered. Much testimony was taken before the referee, who reported that there had been no material change in the circumstances of either plaintiff or defendant which would justify a reduction of the amount of alimony awarded by the decree. Thereafter the husband constantly resisted the payment of the alimony, which was, however, as constantly and successfully enforced through the efforts of the attorney retained for that purpose by the wife. The husband owned certain property in this city, which was mortgaged for much less than its value to the Citizens' Savings Bank. He suffered that mortgago to be foreclosed, and the property was sold in June, 1898, for a price which left a surplus over the mortgage debt and costs of foreclosure amounting to $11,150.08. In the foreclosure suit the wife was represented by the same attorney whom she had retained to enforce the payment of the alimony due her under the decree of separation. A reference having been ordered to determine how the surplus should be distributed, the attorney for the wife insisted that one third thereof should be deposited with the chamberlain to secure her right of dower. This contention was vigorously combated by the husband, but prevailed, and resulted in an order entered on the 7th day of December, 1898, directing that one third of the surplus be deposited with the chamberlain, to be kept invested during the joint lives of James and Catharine Mooney, the income to be paid to James Mooney during his life, and upon his death, if Catherine Mooney survived him, to be paid to her during her life. The attorney for the wife also took steps to secure payment in the future of the alimony due the wife, and moved for and obtained an order, dated January 27, 1899, directing that the chamberlain retain out of the surplus moneys arising from said sale the sum of

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$4,000 as security for the payment, from time to time, of the alimony to become due to the wife under the decree of separation. For these services, so successfully rendered and of such value to the wife, her attorney has thus far been most inadequately compensated. Until very recently the feelings between the wife and husband have been very bitter. Now, however, the wife has executed in each of the above-entitled actions a relinquishment of all claims to the moneys retained by the chamberlain under the above-mentioned orders, and a consent that said orders be vacated, and the husband accordingly moves in each case for a vacation of the order under which the chamberlain holds the money. This motion is resisted by the attorney for the wife, who claims a lien upon the funds for the value of his services rendered to the wife. That the attorney's services were of great value to her is not to be questioned, and if the funds directed to be held as security for future contingencies had been absolute recoveries for the wife's benefit, in which she had a vested and disposable, although perhaps only a partial, interest, no question could arise as to the attorney's right to alien thereon. They are not, however, such recoveries, and the wife has no title to or interest in them except that she is interested to the extent that if in the future she may acquire any interest therein the funds will remain intact, but until the happening of some contingency that has not yet happened, and may never happen, the absolute and entire title in the funds rests in the husband. The funds are retained in court merely as security against a possible claim upon them which may hereafter arise, but this retention in no wise affects the husband's present ownership. It is clear that the attorney can assert no claim to the funds except through his client's title thereto or interest therein; for he can have no higher rights than his client has. Her right is not to payment out of the fund, but merely that it be kept intact. She cannot assign the funds, or, at present at least, assert any claim to any part thereof. So far as concerns so much of the surplus moneys as are held as security for the payment of future alimony, the wife can never become entitled to it unless the husband refuses to

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