Opinion
November 17, 1949.
Appeal from the Municipal Court of the City of New York, Borough of The Bronx, SULLIVAN, J., CRAIG, J.
Irving Cohen, appellant in person.
Saul Hammer for respondent.
Legal services rendered for a wife or child are necessaries as a matter of law ( Dravecka v. Richard, 267 N.Y. 180). Recovery may not be had for services rendered to a child where the liability of the father has been fixed in a matrimonial decree ( Karminski v. Karminski, 260 A.D. 491). However, in this case the father retained the child contrary to the custody provisions of the matrimonial decree necessitating a habeas corpus proceeding against him. That proceeding was determined adversely to the father and the child returned to the mother, in accordance with the terms of the matrimonial decree. The affirmative action taken by the father caused retention of plaintiff as counsel in the habeas corpus proceedings. Under such circumstances, an attorney may maintain an action for services rendered.
The judgment should be reversed, with $30 costs, and judgment directed for plaintiff, and cause remanded for assessment of damages.
Appeal from order dismissed.
PECORA, EDER and HECHT, JJ., concur.
Judgment reversed, etc.