Opinion
280 A.D. 273 113 N.Y.S.2d 616 HARRIS J. GRISTON, Respondent, v. EDWARD M. ROSENFIELD, Appellant. Supreme Court of New York, First Department. June 18, 1952
APPEAL from an order of the Supreme Court at Special Term (STEUER, J.), entered January 25, 1952, in New York County, which denied a motion by defendant for summary judgment dismissing the complaint under rule 113 of the Rules of Civil Practice.
COUNSEL
Mitchell Salem Fisher of counsel (Mendel Zucker and Sol Deutsch with him on the brief; Deutschs&sZucker, attorneys), for appellant.
Harris Jay Griston of counsel (David Gerhardt, attorney), for respondent.
Per Curiam.
This is an action by an attorney against a husband for the value of legal services rendered to a wife in a proceeding to obtain custody of a child. The complaint alleges that the defendant caused the wife to leave their home and detained the child, requiring the wife to institute a habeas corpus proceeding, in which plaintiff represented the wife. The theory of the present action is that the services to the wife in the habeas corpus proceeding were a necessary for which defendant is obligated to pay.
The wife instituted a separation action against the husband shortly after the institution of the custody proceeding and in the final determination of that action it was held that the wife was not justified in leaving the marital home. It follows that the habeas corpus proceeding was not justified and that the rendition of legal services to the wife in that proceeding was not a necessary for which defendant may be held responsible (Weidlich v. Richards, 276 A.D. 383).
The order appealed from should be reversed, with $20 costs and disbursements to appellant, and defendant's motion for summary judgment granted.
PECK, P. J., COHN, VAN VOORHIS and BERGAN, JJ., concur.
Order unanimously reversed, with $20 costs and disbursements to appellant, and the motion for summary judgment dismissing the complaint granted, and judgment is directed to be entered dismissing the complaint herein, with costs to defendant.