Zolotorofe v. Pearson , 176 N.Y.S.2d 29 ( 1958 )

In an action by an attorney at law, respondent herein, to recover for necessaries furnished to appellant’s wife (legal services), the appeal, by permission of this court, is from an order of the Appellate Term which affirmed so much of an order of the City Court of the City of New York, County of Kings, as directed appellant to appear for examination as to his finances, income, and assets, and to produce books and records on the examination in accordance with section 296 of the Civil Practice Act. The legal services were rendered in bringing a separation action for the wife. Shortly after commencement of the separation action appellant and his wife became reconciled, and the action was discontinued at the wife’s direction. Order of the Appellate Term reversed and order of the City Court modified so as to provide that appellant’s motion to vacate the notice of examination be granted in its entirety, with costs in all courts. The action is in quasi contract to recover the reasonable value of the attorney’s services actually rendered and completed. The papers fail to demonstrate the necessity for examination of appellant in order to prove such value. (Cf. Stein v. Hart, 274 App. Div. 1085; Easton v. Simpson, 182 Misc. 405, affd. 267 App. Div. 1047.) Proper practice would be to allege that appellant is able to afford payment of the reasonable value of the legal services, and if such allegation be denied an application to examine appellant might be in order. (Moldauer v. Walzer, 197 Misc. 649; see, also, Granat v. Scherman, 60 N. Y. S. 2d 677.) Nolan, P. J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ.