Felderv.Mohr

Court of Appeals of the State of New YorkJul 8, 1976
39 N.Y.2d 1002 (N.Y. 1976)
39 N.Y.2d 1002355 N.E.2d 295387 N.Y.S.2d 241

Argued June 8, 1976

Decided July 8, 1976

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, RICHARD W. WALLACH, J.

Myrna Felder for appellant.

Samuel N. Greenspoon for respondent.


MEMORANDUM. The order of the Appellate Division should be affirmed, with costs.

Plaintiff, an attorney, seeks to recover from defendant the sum of $7,500 which he alleges to be the reasonable value of necessary legal services rendered to defendant's infant daughter who was in the mother's custody. Plaintiff was retained by the child's mother, the former wife of defendant. Following a divorce both the mother and defendant remarried. During the period when the alleged services were rendered, and pursuant to the terms of their separation agreement, defendant paid his former wife $11,000 annually ($5,500 per child) for the support of the children of their marriage.

Although it concluded that the services rendered by plaintiff were "necessaries", the trial court made a finding, and both the Appellate Term and the Appellate Division affirmed, that the level of support provided by defendant was entirely adequate and sufficient, and thus judicial intervention and the consequent alteration of the separation agreement (which had been prepared by plaintiff) were unwarranted. As a result, plaintiff was denied relief. In view of the affirmed findings, well documented and supported by the record, this court is without power to act (Cohen and Karger, Powers of the New York Court of Appeals, § 107 et seq.), if indeed it were of a mind to do so. We would note, however, that in a proper case, which this is not, the relief sought here might be available (see Langerman v Langerman, 303 N.Y. 465, 469, citing De Brauwere v De Brauwere, 203 N.Y. 460, 464; cf. Family Ct Act, § 413).

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.

Order affirmed.