The rule that an award of alimony and counsel fee exempts a husband from further common-law liability therefor *730(Turner v. Woolworth, 221 N. Y. 425), does not apply where same is denied upon motion pendente lite and the action is discontinued. (Elder v. Rosenwasser, 238 N. Y. 427; Dravecka v. Richard, 267 id. 180; Goldberg v. Keller, 236 App. Div. 541; Ehrlich v. McKee, 170 Misc. 222; affd., 258 App. Div. 715.) In the absence of special agreement upon which a discontinuance is based in no sense is such a termination of an action conclusive upon the parties, or their attorneys, of the merits of the rights involved in the controversy. An order made upon a motion for alimony and counsel fees pendente lite is not conclusive. Only a final judgment upon the merits settles conclusively the questions at issue. (Bannon v. Bannon, 270 N. Y. 484.) However, insufficiency of the defense would not relieve plaintiff of the burden of proving all the elements necessary to establish his right to recover for legal services including proof that the suit brought was for the protection and support of the wife and the conduct of the husband such as to render its institution and prosecution reasonable and proper. (Naumer v. Gray, 28 App. Div. 529.)
Order reversed, with ten dollars costs, and motion grantéd. Appeal from order denying reargument dismissed.
All concur. Present — McCook, Hammer and Miller, JJ.