490 F.

2d 509

PHILLIPS, NIZER, BENJAMIN, KRIM & BALLON,

Plaintiff-Appellee,
v.
Lewis S. ROSENSTIEL, Defendant-Appellant.
No. 59, Docket 73-1568.

United States Court of Appeals, Second Circuit.

Argued Nov. 5, 1973.
Decided Dec. 10, 1973.

Walter S. Beck, New York City (Dinsmore Adams, Janet P. Kane and
Phillips, Nizer, Benjamin, Krim & Ballon, New York City, of counsel),
for plaintiff-appellee.
Roy M. Cohn, New York City (Saxe, Bacon, Bolan & Manley, New York
City, of counsel), for defendant-appellant.
Before WATERMAN, FRIENDLY and TIMBERS, Circuit Judges.
FRIENDLY, Circuit Judge:

I.
1

After twelve years of litigation, with countless suits in the courts of New York,
Connecticut and Florida, the much-publicized marital dispute between Lewis
and Susan Rosenstiel has improbably found its way into a federal court of
appeals. The original marital dispute is now far behind; what brings the parties
here is the mundane subject of attorneys' fees.

The plaintiff, a New York law firm which represented Susan in a variety of
matters between 1962 and 1968, brought this suit in the District Court for the
Southern District of New York, under 28 U.S.C. 1332, claiming that under New
York law Rosenstiel, then a citizen of Connecticut and later of Florida, was
liable for a variety of legal services that the firm had rendered to Susan.

The Rosenstiels were married in New York in 1956.1 By 1961 they had

The Rosenstiels were married in New York in 1956.1 By 1961 they had
separated, and their legal battles soon began. Lewis initially sought an
annulment on the ground that Susan's earlier Mexican divorce was invalid.
After a bitter squabble involving allegations of international intrigue and
bribery, the New York appellate courts reversed the annulment decree.
Rosenstiel v. Rosenstiel, 21 A.D.2d 635, 253 N.Y.S.2d 206 (1st Dep't 1964),
rev'g 43 Misc.2d 462, 251 N.Y.S.2d 565 (Sup.Ct.), aff'd, 16 N.Y.2d 64, 262
N.Y.S.2d 86, 209 N.E.2d 709 (1965), cert. denied, 384 U.S. 971, 86 S.Ct. 1861,
16 L.Ed.2d 682 (1966). The parties then returned to the New York State
Supreme Court for a determination of the support and maintenance payments
due to Susan during the separation, and the counsel fees that should be awarded
her lawyers. The state judge granted a sizeable sum on each count, awarding
the plaintiff law firm $360,000 for its services and Susan $2400 per month after
taxes as alimony. The law firm had sought more than $600,000 in counsel fees
for its services in that case and in a variety of other actions in which it had
represented Susan, but the court found that the statutory provision allowing a
fee award, N.Y. Domestic Relations Law 237, McKinney's Consol.Laws, c. 19,
extended only to services rendered in the marital action and related proceedings.
The Appellate Division modified the decree by increasing the alimony
payments to Susan but reducing the counsel fees to $282,000. Rosenstiel v.
Rosenstiel, 28 A.D.2d 651, 280 N.Y.S.2d 624 (1st Dep't 1967). Both parties
appealed, but the Court of Appeals affirmed without opinion, Rosenstiel v.
Rosenstiel, 20 N.Y.2d 925, 286 N.Y.S.2d 278, 233 N.E.2d 292 (1967).

Besides the annulment action, the Rosenstiels were involved in a variety of

other legal disputes during the same period, in many of which the plaintiff law
firm either represented Susan or provided some legal services to her. Among
these were an abortive Connecticut annulment action brought by Lewis; a
conversion suit brought by Lewis in the New York courts; a replevin action
brought by Lewis to recover his furniture and other personal effects that Susan
had either retained or sold when the couple separated; a joint action by Susan
and the law firm against the St. Paul Fire and Marine Insurance Company on its
surety bond to recover for Lewis' failure to make timely support payments; and
a number of vendors' actions brought against Susan or against Susan and Lewis
for purchases made by Susan during the separation. In this action the law firm
sought to recover for its services in each of these suits, as well as for its work
on the appeal from the support and attorneys' fee awards in the annulment suit.
In addition, the firm sought to recover various disbursements made in
connection with several of the other suits mentioned above.

The district court held that it had jurisdiction because the plaintiff had
established diversity of citizenship, and the suit was not one for divorce or
alimony but simply for attorneys' fees.2 Having taken jurisdiction, the court

held that under New York common law action for 'necessaries' the plaintiff
could recover for the various services rendered to Susan, although it reduced
the plaintiff's claim from a total of $200,000 to $122,615.37. The defendant has
appealed, contending that the district court misread the applicable New York
law in several significant respects, and that the judgment was therefore grossly
inflated. In addition, the defendant contended at oral argument that the district
court improperly assumed jurisdiction over the case and should either have
dismissed the suit or stayed it to permit a state court to resolve the difficult
questions of New York law here presented.
II.
6

We must first consider the correctness of the district court's ruling that the suit
was not barred by the rule that diversity jurisdiction does not extend to
matrimonial actions. This principle has its origin in a dictum in Barber v.
Barber, 62 U.S. (21 How.) 582, 584, 16 L.Ed. 226 (1859).

We disclaim altogether any jurisdiction in the courts of the United States upon
the subject of divorce, or for the allowance of alimony, either as an original
proceeding in chancery or as an incident to divorce a vinculo, or to one from
bed and board.

The three Justices who dissented from the assumption of jurisdiction in Barber
supplied a rationale for the dictum. The case had been brought as a diversity
suit in the district court for Wisconsin to enforce a New York decree for
separation and alimony, and the majority held that the court had jurisdiction
since the case was not a suit for allowance of alimony, but merely a suit to
prevent a valid state court decree from being defeated by fraud. The dissenters
responded that chancery jurisdiction in England had not extended to divorce
and alimony, with the result, presumably, that a proceeding seeking such relief
did not come within the language, 'all suits of a civil nature at common law or
in equity,' of the diversity statute, 1 Stat. 78.3 The Court gave support to this
reasoning in Maynard v. Hill, 125 U.S. 190, 206, 8 S.Ct. 723, 31 L.Ed.2d 654
(1888), where it noted that the power to grant divorces in England had been
divided between the ecclesiastical courts, which could grant divorces from bed
and board, and Parliament, which alone could grant absolute divorces.

In Simms v. Simms, 175 U.S. 162, 167, 20 S.Ct. 58, 44 L.Ed. 115 (1899), the
Court reaffirmed the Barber dictum, although in that case it exercised appellate
jurisdiction over a divorce decree of a territorial court.4 The Court applied the
dictum in Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 50 S.Ct. 154, 74 L.Ed.

489 (1930), in refusing to issue a writ of prohibition against an Ohio proceeding

in which a consul was sued for divorce, despite the constitutional provisions on
the subject and the statutory reservation to the federal courts of exclusive
jurisdiction 'of all suits and proceedings' against consuls and the grant of
jurisdiction of such suits and proceedings to the district courts and the Supreme
Court. After stating that the exclusive jurisdiction statutes 'do not purport to
exclude the State Courts from jurisdiction except where they grant it to Courts
of the United States,' Mr. Justice Holmes, no tyro in legal history, continued, id.
at 383-384, 50 S.Ct. at 155:
10

Therefore, they do not affect the present case if it be true as has been
unquestioned for three-quarters of a century that the Courts of the United States
have no jurisdiction over divorce. If when the Constitution was adopted the
common understanding was that the domestic relations of husband and wife
and parent and child were matters reserved to the States, there is no difficulty in
construing the instrument accordingly, and not much in dealing with the
statutes. 'Suits against consuls and viceconsuls' must be taken to refer to
ordinary civil proceedings and not to include what formerly would have
belonged to the ecclesiastical Courts.

11

We have no disposition to question that conclusion, whether the history was

right or not, cf. Spindel v. Spindel, supra, 283 F.Supp. at 802-803. More than a
century has elapsed since the Barber dictum without any intimation of
Congressional dissatisfaction. It is beyond the realm of reasonable belief that, in
these days of congested dockets, Congress would wish the federal courts to
seek to regain territory, even if the cession of 1859 was unjustified. Whatever
Article III may or may not permit, we thus accept the Barber dictum as a
correct interpretation of the Congressional grant.

12

However, the scope of the exception relating to matrimonial actions, like that of
the related one concerning matters of probate and administration, has been
rather narrowly confined, see generally Hart & Wechsler, supra, at 1186-92 (2d
ed. 1973). As already noted, in the very case enunciating the matrimonial
exception the Supreme Court sustained federal jurisdiction to enforce an
alimony award already made by a state court in a divorce proceeding. Accord,
Sistare v. Sistare, 218 U.S. 1, 16-17, 30 S.Ct. 682, 54 L.Ed. 905 (1910). We
have upheld federal jurisdiction in an action to determine whether a
Connecticut divorce decree was invalid as having failed to give full faith and
credit to a previous Nevada decree, Southard v. Southard, 305 F.2d 730, 731 (2
Cir. 1962). In Harrison v. Harrison, 214 F.2d 571 (4 Cir.), cert. denied, 348
U.S. 896, 75 S.Ct. 217, 99 L.Ed. 704 (1954), the court sustained federal
jurisdiction in a diversity action to declare a Mexican divorce decree invalid

and to order payment of past and future alimony under an earlier Ohio decree.
A different view has been taken where the amounts ordered to be paid as
alimony were subject to modification by the state court, Lynde v. Lynde, 181
U.S. 183, 187, 21 S.Ct. 555, 45 L.Ed. 810 (1901); Morris v. Morris, 273 F.2d
678 (7 Cir. 1960), a view paralleled in the field of custody and visitation by our
decision in Hernstadt v. Hernstadt, 373 F.2d 316 (2 Cir. 1967). Other relevant
cases will be found in Judge Weinstein's learned opinion in Spindel v. Spindel,
supra, 283 F.Supp. at 810-811.
13

As indicated, the bulk of the complaint is concerned with legal services in no

way connected with the matrimonial action, recoverable only in an action at
common law for necessaries. The only claim that could have been asserted in
the matrimonial action was that for services on the appeal relating to alimony
and counsel fees. It may well be that this claim would have been subject to
dismissal for lack of federal jurisdiction if it had stood alone. Assuming that to
be true, we need not debate whether the doctrine of pendent jurisdiction
nevertheless would permit its consideration here,5 in view of our holding that,
for closely related reasons, this claim lies within the exclusive jurisdiction of
the New York courts.
III.

14

The holding that, with one possible exception, federal jurisdiction was not
barred by the dictum in Barber v. Barber, supra, 62 U.S. (21 How.) at 584, 16
L.Ed. 226, does not necessarily entail a conclusion that the district court should
have adjudicated this action. It would be difficult to think of a case where
invocation of federal jurisdiction by a plaintiff was less justified than here;
indeed, anyone challenged to produce an example why diversity jurisdiction
should be abolished or severely curtailed would hardly have conceived so
dramatic an illustration. The action not only presents the anomaly of a
jurisdiction intended to protect out-of-staters against local prejudice being
invoked by an instater,6 see ALL, Study of the Division of Jurisdiction Between
State and Federal Courts 99-110 (1968), but the instater is a law firm that has
practiced, long and successfully, in the New York courts. The defendant,
although a resident of Connecticut or later of Florida, maintained a New York
City apartment and his business interests were focused in New York. The
servides for which compensation is sought were rendered in New York courts.
Most important of all, decision requires exploration of a difficult field of New
York law with which, because of its proximity to the exception for matrimonial
actions, federal judges are more than ordinarily unfamiliar. Moreover, the
claim for services on appeal on the award of alimony and counsel fees
necessitates the interpretation of a decree of a New York Supreme Court Justice

who sits only a few hundred yards from the Federal Courthouse in New York
City. 7
15

Despit the expansive language used thirty years ago in Meredith v. Winter
Haven, 320 U.S. 228, 236-238, 64 S.Ct. 7, 88 L.Ed. 9 (1943), we do not believe
that the Supreme Court today would demand that federal judges waste their
time8 exploring a thicket of state decisional law in a case such as this. Some
movement away from Meredith took place in Louisiana Power & Light Co. v.
City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959),9 and
again in Kaiser Steel Corp. v. W. S. Ranch Co., 391 U.S. 593, 88 S.Ct. 1753,
20 L.Ed.2d 835 (1968). Although these cases concerned state law issues
important to the state itself, courts of appeals, inspired no doubt by feelings
akin to those we have voiced, have stayed diversity actions for resolution of
difficult state law problems by the state courts even when the issues were of
concern mainly to the parties. See United Services Life Ins. Co. v. Delaney,
328 F.2d 483 (5 Cir. (1964); Reichman v. Pittsburgh Nat'l Bank, 465 F.2d 16,
18 (3 Cir. 1972) (similar issues concerning construction of trust pending in
Pennsylvania Orphans' Court which has 'special ability . . . to decide those
issues in view of its exclusive state jurisdiction over trusts and estates');
Magaziner v. Montemuro, 468 F.2d 782, 787 (3 Cir. 1972) (expertise of Family
Division of Pennsylvania Court of Common Pleas with respect to child
support). As the two latter cases suggest, there is particularly strong reason for
abstention in cases which, though not within the exceptions for matters of
probate and administration or matrimony and custody actions, are on the verge,
since like those within the exception, they raise issues 'in which the states have
an especially strong interest and a well-developed competence for dealing with
them.' Wright, Federal Courts 25, at 84 (2d ed. 1970). Beach v. Rome Trust
Co., 269 F.2d 367 (2 Cir. 1959), is not to the contrary since that case involved
'no controlling or obscure question of state law.' Id. at 374.

16

In view of these factors, if defendant had made a timely motion for a stay
pending plaintiff's initiating appropriate proceedings in the New York courts,
the judge should have granted it. From an examination of the transcript below,
we think it quite evident that he would have done so. But his efforts to elicit
such a motion from defendant's counsel proved unsuccessful. The action was
filed on May 10, 1968. After many rounds of motions before a number of
judges of the district court, the case was tried on September 1 and 2 and
December 7, 1971.10 Only at that time did defendant's counsel move for a stay,
and the judge thought it would be an abuse of discretion for him to grant one at
that late date when so much professional and judicial time had already been
expended in the federal court. We surely cannot say it was an abuse of
discretion for him to have denied one. Compare Louisiana Power & Light Co.

v. City of Thibodaux,supra, 360 U.S. at 27 n.2, 31, 79 S.Ct. 1070 (Stewart, J.,
concurring). And so, in his words, we 'will treat the merits, painful as that may
be.'
IV.
17

As earlier indicated, in attempting to impose upon Lewis Rosenstiel the costs of

legal services rendered to Susan during their separation, the plaintiff has relied
on the common law action for 'necessaries' as applied in New York. The
principle behind the suit for necessaries is that until the marriage relationship is
severed, the husband is liable to his wife or his wife's creditors for her support
and the support of his children. DeBrauwere v. DeBrauwere, 203 N.Y. 460, 96
N.E. 722 (1911); Laumeier v. Laumeier, 237 N.Y. 357, 364, 143 N.E. 219, 221
(1924); Rudnick v. Tuckman,1 A.D.2d 269, 271, 149 N.Y.S.2d 809, 811 (1st
Dep't 1956); cf. Wanamaker v. Weaver, 176 N.Y. 75, 68 N.E. 135 (1903).
Although he cannot be charged with every expenditure that she may choose to
make, the husband will be held responsible to the wife's creditors for all
services and purchases found to have been necessary to support her in a style
consistent with her habits and his means. Keller v. Phillips, 39 N.Y. 351, 354
(1868); DeBrauwere v. DeBrauwere, supra, 203 N.Y. at 464-465, 96 N.E. at
723; Garlock v. Garlock,279 N.Y. 337, 340, 18 N.E.2d 521, 522 (1939);
Grishaver v. Grishaver, 225 N.Y.S.2d 924, 935-936 (Sup.Ct. 1961); Tausik v.
Tausik, 38 Misc.2d 11, 235 N.Y.S.2d 776 (Sup.Ct.1962). The wife can
maintain her action for necessaries even after the couple separates, as long as
she did not cause the separation by her misconduct. Pearson v. Pearson, 230
N.Y. 141, 146, 129 N.E. 349, 350 (1920); cf. Griston v. Rosenfield, 280
App.Dev. 273, 113 N.Y.S.2d 616 (1st Dep't 1952); Steisel v. Gratzer, 3
Misc.2d 816, 66 N.Y.S.2d 526 (Sup.Ct.1947). Only termination of the marriage
or a judicial or private financial settlement will relieve the husband of his
liability for necessaries under most circumstances. Winter v. Winter, 191 N.Y.
462, 84 N.E. 382 (1908); Turner v. Woolworth, 221 N.Y. 425, 429, 117 N.E.
814, 815 (1917); Elder v. Rosenwasser, 238 N.Y. 427, 432, 144 N.E. 669, 671
(1924); Ashmead v. Sullivan, 198 App.Div. 885, 888, 191 N.Y.S. 205, 206-207
(1st Dep't 1921); Rudnick v. Tuckman, supra; Marson v. Marson, 6 App.Div.2d
786, 175 N.Y.S.2d 82 (1st Dep't 1958), aff'd, 6 N.Y.2d 925, 190 N.Y.S.2d 990,
161 N.E.2d 212 (1959).

18

Traditionally, the action for necessaries has included food, clothing, shelter,
medical bills, and incidental living costs of various sorts, see Laumeier v.
Laumeier, supra; Bloomingdale Bros. v. Benjamin, 200 Misc. 1108, 112
N.Y.S.2d 33 (City Ct., New York City, 1952); Abraham & Straus v. Teller, 37
Misc.2d 797, 236 N.Y.S.2d 435 (Civil Ct., New York Co., 1962). However, it

has also been held to include necessary counsel fees that the wife may incur,
Dravecka v. Richard, 267 N.Y. 180, 196 N.E. 17 (1935); Naumer v. Gray, 28
App.Div. 529, 51 N.Y.S. 222 (2d Dep't 1898); Friou v. Gentes, 11 App.Div.2d
124, 204 N.Y.S.2d 836 (2d Dep't 1960); Gallin v. Stafford, 10 A.D.2d 915, 200
N.Y.S.2d 498 (1st Dep't 1960), aff'd 9 N.Y.2d 894, 216 N.Y.S.2d 705, 175
N.E.2d 832 (1961). Such fees have been allowed as 'necessaries' for purposes
ranging from the wife's defense against criminal charges, see, e.g., Elder v.
Rosenwasser, supra, to costs incurred in connection with the marital dispute
itself, Goldberg v. Keller, 236 App.Div. 541, 260 N.Y.S. 65 (2dDep't 1932).
The principles applicable to recovery of legal fees in a marital dispute are
similar to those applicable in a suit for necessaries of other kinds, although they
are complicated somewhat by 237 of the New York Domestic Relations Law.
That statute provides for the award of counsel fees in marital actions of various
sorts, including proceedings
19

(1) to annul a marriage or declare the nullity of a void marriage, or (2) for a
separation, or (3) for a divorce, or (4) to declare the validity or nullity of a
judgment of divorce rendered against the wife who was the defendant in any
action outside the State of New York and did not appear therein where the wife
asserts the nullity of such foreign judgment, or (5) by a wife to enjoin the
prosecution in any other jurisdiction of an action for a divorce, or (6) upon any
application to annul or modify an order for counsel fees and expenses made
pursuant to this subdivision . . ..

20

Prior to the amendment and recodification of the statute in 1963, it was

understood that the statutory provision would be the exclusive remedy in any
marital suit in which the wife sought counsel fees, but that if the wife or her
attorney had not requested a statutory award, they could sue for fees under the
common law action for necessaries. Naumer v. Gray, supra; Elder v. Cochrane,
209 App.Div. 665, 205 N.Y.S. 292 (2d Dep't 1924); Gallin v. Stafford, supra.
This rule was criticized as cumbersome and productive of judicial inefficiency,
see, e.g., Horn v. Schmalholz, 150 App.Div. 333, 134 N.Y.S. 652 (2d Dep't
1912); Handelman v. Peabody, 285 App.Div. 689, 140 N.Y.S.2d 374 (1st Dep't
1955), but the New York courts declined to depart from it.

21

There was some conjecture that the 1963 amendments had made the statute the
sole remedy for obtaining fees for legal services rendered in a matrimonial
action, see Christensen v. Christensen, 39 Misc.2d 370, 373, 240 N.Y.S.2d 797,
800 (Sup.Ct.1963); Tompkins & Lauren v. Glass, 44 Misc.2d 239 253
N.Y.S.2d 465 (Civil Ct., New York Co., 1964); Ellis v. Shapiro, 56 Misc.2d
379, 288 N.Y.S.2d 841 (Civil Ct., New York Co.), aff'd, 57 Misc.2d 633, 293
N.Y.S.2d 26 (Sup.Ct.1968), but the lower New York courts appear to have

determined that the common law action is still available when a statutory
request is not made. Levine v. Levine, 48 Misc.2d 15, 263 N.Y.S.2d 997 (Civil
Ct., New York Co., 1965), aff'd, 50 Misc.2d 39, 269 N.Y.S.2d 243
(Sup.Ct.1966); Schwartz v. Aberbach, 66 Misc.2d 246, 319 N.Y.S.2d 1021
(Civil Ct. Bronx Co., 1971). Similarly, if the wife brings a new action to
enforce or modify an earlier decree, she or her lawyer can bring a subsequent
action for necessaries to collect counsel fees for that suit from the husband,
Gallin v. Stafford, supra; Friou v. Gentes, supra. But if the wife or her attorneys
elect the statutory remedy in a single marital action, they cannot later bring a
suit to recover counsel fees relating to that action, Turner v. Woolworth, supra;
Dravecka v. Richard, supra.
22

The question here is whether the wife's attorneys can have it both ways -- an
allowance under 237 for counsel fees at trial and an action for necessaries for
counsel fees on appeal. It is plain enough that the attorneys could have
requested a supplementary allowance under 237 for services on the appeal. See
Carlo v. Carlo, 30 A.D.2d 530, 291 N.Y.S.2d 410 (2d Dep't 1968). Authority is
scant whether they must. The only case directly on point which has been cited
to us, Tompkins & Lauren v. Glass, supra, answers that question in the
affirmative. The court rendering the decision in the Tompkins & Lauren case
does not stand high in the New York judicial hierarchy, and we would not feel
bound by its decision if we had any reason to believe the New York Court of
Appeals would think otherwise. However, we do not. Judge Greenfield's
opinion is well-reasoned, and the result accords with the general distaste of the
New York courts for resort to the action for necessaries for compensating legal
services in a case where an allowance under 237 is available. Surely the court
in which this matrimonial action was tried and which has awarded
compensation for legal services to the wife in the trial is in a far better position
to determine reasonable compensation for appeal than another tribunal which
comes to the case cold.11

23

Judge Tyler, who did not discuss the Tompkins & Lauren decision, was greatly
influenced by the fact that, in fixing plaintiff's fees in the matrimonial action,
Supreme Court Justice Helman appeared to consider only services rendered
through the trial. But that does not mean that Justice Helman was disclaiming
jurisdiction with respect to a further allowance for services on appeal. To the
contrary, his decree provided 'that the parties hereto shall have such other and
further relief at the foot of this judgment as may be just and proper in the
premises' and 'that this order or decree may be enforced or modified only in the
Supreme Court.' Under these circumstances, the New York law appears to be
that once having applied for statutory compensation in the marital action,
plaintiff could not seek any further fees except from the court that had made

the original statutory award. We take no position on whether an applicatake for

a modification of the decree to allow further compensation can still be made.
Cf. Christensen v. Christensen,supra; Davies v. Davies, 65 Misc.2d 480, 318
N.Y.S.2d 97 (Sup.Ct.1971). It suffices that another court, state or federal,
cannot lawfully award counsel fees as 'necessaries' in the face of a prior
statutory allowance in the New York matrimonial action. We therefore reverse
the portion of the district court's judgment awarding $32,000 to plaintiff for its
services on the appeal from the state court's support decree, without prejudice
to any proceeding it may be able to take in the Supreme Court of New York in
the matrimonial action.
24

Rosenstiel next challenges the $25,000 award for fees in the replevin action. He
argues that counsel fees are not available in an action for necessaries when the
wife's suit is frivolous or her defense to a suit is baseless. New York law applies
the same standard in determining whether legal services are 'necessary' as it
does in evaluating other services supplied to the wife. Weidlich v. Richards,
276 App.Div. 383, 94 N.Y.S.2d 546 (1st Dep't 1950). The services must be for
the protection and support of the wife, and they must be reasonable and proper,
see Lanyon's Detective Agency v. Cochrane, 240 N.Y. 274, 277, 148 N.E. 520,
521 (1925); Steuer v. Hart,175 App.Div. 829, 162 N.Y.S. 489 (1st Dep't 1916);
Rosenblatt v. Wolf, 17 A.D.2d 396, 236 N.Y.S.2d 68 (1st Dep't 1962). The
state court granted judgment for Lewis in the replevin action, enabling him to
recover his furniture and other possessions, which Susan had retained, and
awarding him $150,000 damages for the loss of his property that Susan had
disposed of without his permission. In addition, the state court referee pointed
out that Susan's defense was founded largely on fabrications and falsehoods,
including her wholly baseless claim that some of Lewis' property had been
destroyed in a fire when, in fact, she had caused it to be sold. Plaintiff correctly
points out that victory is not a prerequisite to recovery of legal fees. But Susan's
case in the replevin action was not simply a losing one, it was a sham.12

25

Although we have not been able to find any New York cases directly in point,
we do not think the New York courts would require a husband to underwrite his
wife's legal fees under these circumstances. To permit the wife to impose huge
attorney's fees on her husband in a meritless defense to a suit he had been
forced to bring against her would encourage frivolous litigation and impose a
double burden on the husband in his efforts to vindicate his rights. It would
seem odd, at the least, to require Lewis to pay debts incurred by Susan in a
unjustified attempt to block him from recovering his own property. We
therefore reverse the award of $25,000 to plaintiff for defense of the replevin
action and direct that plaintiff recover nothing against Lewis for these services.

26

The next major item that the defendant challenges is the award of $55,000 to
the plaintiff for its services in the consolidated vendors' actions. The district
court granted plaintiff $40,000 for its services in the trial of these actions, and
$15,000 for its services on appeal. Lewis does not contend that the defense of
the vendors' actions was frivolous, nor do we find it to be so. However, he asks
us to award legal fees only in accordance with the percentage that he was
required to pay in the joint actions against Susan and himself. We see no basis
for doing this. Once it is determined that the legal services rendered to the wife
were 'necessary,' the court must give judgment against the husband for the
reasonable value of the services rendered. Lewis is therefore liable for all
'necessary' legal services rendered in the vendors' actions prior to the date of the
support decree, December 28, 1966. Since the trial of the actions took place
prior to that date, we affirm the $40,000 award for legal services rendered in
the trial.

27

The $15,000 awarded for the appeal in the vendors' actions stands differently.
The record shows that the plaintiff did not render any significant services with
regard to the appeal until well after the date of the support judgment. Since
under New York law an alimony award is held to provide for all 'necessaries'
that the wife might incur except for legal fees in further marital litigation,
People ex rel. Commissioners of Charities v. Cullen, 153 N.Y. 629, 635-636,
47 N.E. 894, 895-896 (1897); Turner v. Woolworth, supra; Dravecka v.
Richard, supra; Klein v. Dula, 217 App.Div. 473, 217 N.Y.S. 221 (1st Dep't
1926); Berry v. Jaworski, 187 Misc. 481, 67 N.Y.S.2d 400, aff'd, 271 App.Div.
932, 68 N.Y.S.2d 432 (1947), the plaintiff cannot obtain reimbursement from
the husband for these post-judgment services rendered in a commercial contract
suit. We therefore reverse the award of $15,000 for services on the appeal from
the consolidated vendors' actions and direct that plaintiff take nothing from
Lewis on that account.13

28

The remaining sums are all relatively small. The parties have not said much
about them, nor shall we. The district court awarded plaintiff $3,000 for its
services in the surety bond suit against the St. Paul Fire Marine Insurance
Company, which Susan instituted when Lewis failed to make timely alimony
payments. New York law permits recovery of counsel fees as necessary for
services rendered in a separate suit to enforce a support decree, see Sheer v.
Foley, 145 Misc. 819, 260 N.Y.S. 252 (City Ct., New York City, 1932); Gallin
v. Stafford, 18 Misc.2d 786, 791, 188 N.Y.S.2d 137, 143 (City Ct., New York
City, 1959), rev'd on other grounds, 10 A.D.2d 915, 200 N.Y.S.2d 498 (1st
Dep't 1960), aff'd, 9 N.Y.2d 894, 216 N.Y.S.2d 705, 175 N.E.2d 832 (1961); In
re Freundlich's Estate, 112 N.Y.S.2d 653 (Sur.Ct., New York Co., 1952). Since
it appears that no counsel fees have previously been sought or awarded in the

surety bond suit, we affirm the award of $3,000 as reasonable compensation for
plaintiff's services in that action.
29

The district court granted plaintiff $2,000 for its part in the Connecticut
annulment action brought by Lewis prior to the institution of the New York
annulment suit. Once again, the services were necessary and the award appears
reasonable. We therefore affirm.

30

Finally, the district court granted $500 for plaintiff's services in the conversion
suit brought by Lewis in New York Supreme Court. Defendant does not
contend that the minimal services rendered in that action were not 'necessaries,'
and we therefore affirm that award.

31

The defendant concedes that $1,499.45 of the disbursements granted by the

district court were in connection with actions that were 'necessary' to Susan's
defense. However, he challenges the remaining $3,615.92 of disbursements.
Since the district court did not indicate in what actions those were incurred, we
must remand for a determination whether the disbursements were in connection
with an action for which the plaintiffs can here recover counsel fees. If those
disbursements were incident to any of the allowances of compensation we have
upheld, they also should be awarded to plaintiff. However, if they were
incident to any of the awards that we have reversed, they must be denied.
Perhaps it is not too much to hope that the parties can agree on this relatively
small item and spare Judge Tyler from having to conduct another trial.

32

If our decision here has inadvertently rent a seam in New York matrimonial
law, we trust the New York courts will speedily repair it in some other case.
The injury was not of our making.

33

Judgment affirmed in part, reversed in part, and remanded in part. Appellant

may recover half his costs.

The parties have not questioned that the case is to be decided under the laws of
New York rather than of Connecticut

Judge Tyler's ruling was in accordance with a similar ruling by Judge Tenney in
an earlier proceeding. Rosenstiel v. Rosenstiel, 278 F.Supp. 794
(S.D.N.Y.1967)

The dissenters also argued that during the pendency of the marital relationship,

the husband and wife could not legally be citizens of different states. Therefore,
they concluded, divorce jurisdiction was barred because the parties by
definition could never satisfy the jurisdictional requirements. 62 U.S. (21
How.), at 600-602, 16 L.Ed. 226
In addition, the dissenters felt that it was not 'in accordance with the design and
operation' of the federal government that it should 'assume to regulate the
domestic relations of society.' It was beyond the proper competence of the
federal courts, the dissenters wrote,
to control the duties or the habits of the different members of private families in
their domestic intercourse. This power belongs exclusively to the particular
communities of which those families form parts, and it is essential to the order
and to the very existence of such communities.
Id. at 602, 16 L.Ed. 226. Thirty years later the Court appeared to adopt this
portion of the dissenters' view, writing, 'The whole subject of the domestic
relations of husband and wife, parent and child, belongs to the law of the States
and not to the laws of the United States,' In re Burrus, 136 U.S. 586, 593-594,
10 S.Ct. 850, 853, 34 L.Ed. 500 (1890). The issue in that case, child custody,
was held to be 'one in regard to which neither the Congress of the United States
nor any authority of the United states has any special jurisdiction,' thus
apparently extending the prohibition to judicial as well as legislative action. See
Hart & Wechsler, The Federal Courts and the Federal System 1189 (2d ed.
1973).
4

In De la Rama v. De la Rama, 201 U.S. 303, 26 S.Ct. 485, 50 L.Ed. 765 (1906),
the Court again heard an appeal from a divorce decree granted by a territorial
court, but it cited only two reasons supporting the dictum in Barber that federal
courts lack diversity jurisdiction in divorce actions or suits for alimony: first,
that husband and wife cannot normally be citizens of different states, and
second, that a suit for divorce involves no pecuniary value. 201 U.S. at 307, 26
S.Ct. 485. The Court has subsequently rejected the first justification for the
Barber rule, see Haddock v. Haddock, 201 U.S. 562, 571, 26 S.Ct. 525, 50
L.Ed. 867 (1906); Williamson v. Osenton, 232 U.S. 619, 625-626, 34 S.Ct. 442,
58 L.Ed. 758 (1914), and the second has been criticized, see Spindel v. Spindel,
283 F.Supp. 797, 812 (E.D.N.Y.1968); Vestal & Foster, Implied Limitations on
the Diversity Jurisdiction of Federal Courts, 41 Minn.L.Rev. 1, 28 (1956). In
any event, by twice taking jurisdiction in appeals from territorial divorce
actions, the Court seemed to suggest that these actions are within the judicial
power of the federal courts but outside the scope of the diversity statute. See
Wright, Federal Courts 25, at 84

Judge Weinstein's criticism that in Simms and De la Rama, 'the Court said
federal courts lacked jurisdiction and then acted as if they possessed judicial
power over divorce cases,' Spindel v. Spindel, supra, 283 F.Supp. at 803, while
seemingly unanswerable if the Court was proceeding on a constitutional basis,
id. at 804, is lacking in force if, as indicated, the basis for lack of jurisdiction
was the language of the diversity statute. While the latter spoke of 'all suits of a
civil nature at common law or in equity,' the appellate jurisdiction statute
applicable in Simms, Rev.Stat. 702, empowered the Supreme Court to review
'the final judgments and decrees of the supreme court of any Territory,' and the
statute applicable in De la Rama, 32 Stat. 695, permitted it to review 'the final
judgments and decrees of the supreme court of the Philippine Islands in all
actions, cases, causes and proceedings . . ..'
5

It could be argued that pendent jurisdiction cannot overcome a lack of federal

jurisdiction arising from Article III. But, apart from the confusion whether or
not the Supreme Court has been proceeding on constitutional rather than
statutory grounds, see note 4 supra, many instances of ancillary jurisdiction in
diversity cases project the court into areas not covered by Article III, although
the constitutional lack of jurisdiction arises from the identity of the parties
rather than the subject matter. See Hart & Wechsler, supra, at 1079-80.
Similarly, in pendent jurisdiction cases involving related federal and state
claims, the federal courts have been held to have constitutional power to
exercise jurisdiction over the entire 'case.' United Mine Workers v. Gibbs, 383
U.S. 715, 725-726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). There would seem to
be no constitutional bar to extending pendent jurisdiction to closely related
claims as part of the same 'controversy' under 28 U.S.C. 1332, even though
those claims, standing alone, would not be within the court's jurisdiction. Cf.
Leather's Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 810 n.12 (2 Cir. 1971).
Of course, as the Gibbs Court pointed out, the courts would retain the discretion
not to consider the pendent claim if considerations of judicial economy,
convenience, and fairness to litigants were not present, 383 U.S. at 726, 86
S.Ct. 1130

Although the complaint alleges that the members of the plaintiff law firm are
residents of New York and New Jersey, the overwhelming majority reside in
New York

At argument we asked why plaintiff had brought this action in such an

inappropriate forum. The answer was that defendant had taken the position that
the New York courts had no power to make an award for necessaries.
Examination of the papers submitted to support this shows that defendant's
claim was rather that, save for services on the appeal in the matrimonial action,
a New York court could not make such an award in that action

The word 'waste' is appropriate not only because we cannot predict New York
law with authority and our attempt to do so prevents a clarification by the state
courts that would otherwise have occurred, but also because of the unlikelihood
that any of the federal judges who have been concerned with this case will ever
have to confront these or similar issues again

The scope of the decision in City of Thibodaux was restricted by County of

Allegheny v. Frank Mashuda Co., 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163
(1959), decided the same day. The two cases are difficult to reconcile, as both
were diversity suits invoking state eminent domain law in which the district
court had stayed or dismissed the federal action in favor of a state court
determination of the applicable state law. In City of Thibodaux, the Court, 6-3,
approved the district court's stay as being within the court's discretion. In the
Allegheny County case, by contrast, the Court, 5-4, held that the district court's
dismissal of the diversity suit constituted an abuse of discretion. The majority in
City of Thibodaux stressed the difficulty of the underlying state law questions,
while the majority in the Allegheny County case stated that the state law in
question was 'clear and certain,' 360 U.S. at 196, 79 S.Ct. 1060. Although this
suggests a possible distinction between the cases, the Court did not expressly
rely on the difficulty vel non of state law issues and in fact made no apparent
effort to reconcile the opinions in the two cases. See Wright, Federal Courts,
52, at 200-02

10

Judge Tyler later directed a further trial, which was held on September 21 and
October 19, 1972

11

The New York courts have permitted a jury trial to lawyers and businessmen
seeking compensation under the action for necessaries, see, e.g., Lanyon's
Detective Agency v. Cochrance, 240 N.Y. 274, 148 N.E. 520 (1925); Elder v.
Cochrane, 209 App.Div. 665, 205 N.Y.S. 292 (2d Dep't 1924); Kahn v.
Ronson, 72 Misc.2d 551, 340 N.Y.S.2d 344 (Sup.Ct.1972), although plaintiff
mercifully did not seek one here

12

Plaintiff notes that it represented Susan only during the preliminary stages of
the replevin action and was not involved in the case at the time Susan presented
her allegedly fabricated defense. While we assume plaintiff was entirely
blameless, its own clean hands do not make 'necessary' the rendition of legal
services to the wife in a defense she much have known to be meritless. Cf.
Schussheim v. Cohen, 16 N.Y.S.2d 989 (Sup.Ct.1939); Savage v. Savage, 54
N.Y.S.2d 441 (Sup.Ct.1945). Plaintiff's remedy lies against Susan

13

It goes without saying that we are not ruling on plaintiff's rights against Susan