Opinion
December 23, 1921.
McCombs Ryan [ Edward E. McCall of counsel; Frederick R. Ryan with him on the brief], for the plaintiff.
Harry Bijur of counsel [ Harold H. Herts with him on the brief], for the defendant.
Present — CLARKE, P.J., DOWLING, SMITH, PAGE and GREENBAUM, JJ.
From the record in the case it is clear that this counsel fee was granted to pay the defendant's attorneys for past services. The law is well settled that such an order is not authorized unless it be necessary to enable the party to further defend or prosecute, as the case may be. There is nothing in the papers which shows such a necessity. In the final judgment, if the defendant succeeds, she can receive compensation for the moneys paid to her attorney, or it may be that the attorney has a right of action against the plaintiff for moneys so expended as for necessaries. But this order was clearly unauthorized and must be reversed.
This court has decided, however, in another application ( Beauley v. Beauley, 199 App. Div. 280) that the plaintiff should be allowed to amend his complaint so as to state further causes of action. When the issue is formed upon such an amended complaint, the defendant will then have opportunity to apply for such counsel fee as may be necessary to enable her to try those issues. The reversal of this order, therefore, should be with leave to make a new application after the issues are formed under the amended complaint.
Order reversed and motion denied, with leave to defendant to renew motion at Special Term after joinder of issue upon the amended complaint which plaintiff has been granted leave to serve.