Opinion
December 12, 1980
Appeal from the Steuben Supreme Court.
Present — Dillon, P.J., Simons, Hancock, Jr., Callahan and Moule, JJ.
Order unanimously reversed, without costs, and motion denied. Memorandum: Counsel for the deceased wife in a matrimonial action appeals from an order of Special Term, made after his client's death but before her administrator was appointed, which allowed him additional counsel fees of $350. The attorney claims that the award is inadequate. The order is reversed and the motion for counsel fees denied without prejudice to a plenary action by counsel against the husband or against the estate of his client or against both. Upon the wife's death, the divorce action abated and there was no party defendant (see 1 Foster-Freed, Law and the Family, § 5.23; 19A Carmody-Wait 2d, N Y Prac, § 118.66, p 138). The authority to grant counsel fees contained in section 237 Dom. Rel. of the Domestic Relations Law applies only to pending actions and counsel's relief must be by way of plenary action (Musso v Butera, 64 Misc.2d 604; and see Farnham v. Farnham, 227 N.Y. 155, 157).