Judgment unanimously modified on the law and the facts to strike therefrom the sixth decretal paragraph awarding counsel fees to the attorney for defendant wife, and as so modified, in all other respects affirmed, with costs to defendants. The very separation agreement whose validity and enforcibility was defended by the wife in this action expressly provides that she "waives future counsel fees for any purpose". Her attorney undertook the defense with full knowledge of that provision. This was not a matrimonial action within the purview of section 1169 of the Civil Practice Act, and under the circumstances here presented there was no basis for the finding that the legal services were rendered as necessaries for the defendant wife. Settle order.
Concur — Botein, P.J., Frank, Valente, Stevens and Bastow, JJ. [ 9 Misc.2d 599.]