Kamen v. Kamen , 135 N.Y.S.2d 570 ( 1954 )

In an action for a judgment declaring that plaintiff and defendant Kamen are husband and wife, and that the said defendant and the eodefendant, with whom he is living, are not husband and wife and adjudging null and void a Mexican decree of divorce obtained by the defendant Kamen against the plaintiff subsequent to a final judgment of separation, plaintiff appeals from three orders as follows: Appeal A is from an order denying plaintiff’s motion pursuant to section 1169-a of the Civil Practice Act for counsel fees and expenses in connection with the action, in which both defendants have defaulted in answering. Appeal B is from an order granting plaintiff leave to reargue the aforesaid order, and adhering to the original decision denying the motion. Appeal C is from an order denying, without prejudice, plaintiff’s motion for counsel fees and printing expenses on appeal from the two afore-mentioned orders. Appeal A dismissed. On Appeal B, order reversed and motion granted to the extent of directing defendant Kamen to pay to plaintiff a counsel fee of $250 for the prosecution of the action. On Appeal C, order reversed and motion granted to the extent of directing the payment of a counsel fee of $150. One bill of $10 costs and disbursements is awarded to plaintiff. In view of the entry of an order qn reargument, the order involved in Appeal A is not appealable. With respect to Appeal B, the court has power to grant judgment declaring null and void' the Mexican decree entered subsequent to the final judgment of separation. (Baumann v. Baumann, 250 N. Y. 382; Bong v. Long, 281 App. Div. 254.) Plaintiff has demonstrated a probability of success, and is entitled to a reasonable counsel fee, even though it appears probable that the issues will not be litigated. In fixing the counsel fee for services on the appeal, we have considered the fact that a counsel fee has been awarded at Special Term which should compensate counsel for some of the services performed. Nolan, P. J., Wenzel, MacCrate, Schmidt and Murphy, JJ., concur.