¶1I do not disagree in principle with the majority holding that services rendered in one action, although not crowned with success, might be such a substantial contribution to ultimate success in another forum as to be entitled to credit and compensation in measuring the value of services rendered as necessaries. But it seems to me so clear upon the record in this case that the services rendered by plaintiffs in the Supreme Court action were not a necessity that the court is not warranted in leaving to the official referee consideration of the necessity of the Supreme Court action as an item in fixing the value of plaintiffs’ services.
¶2There was never any doubt that proceedings to gain for the children a larger measure of support than that afforded by the Nevada decree could be brought in the Domestic Relations Court, in which court proceedings were ultimately successfully brought. There was no excuse, therefore, in bringing an action to try to establish a like jurisdiction in the Supreme Court, unless we accept plaintiffs’ argument that it was so doubtful that the Domestic Relations Court had authority to make an award in excess of $50 a week that proceeding in that court would likely be inadequate and an effort to do better in the Supreme Court was dictated. We find no mention of such a consideration or reason, however, in the briefs on appeal in the Supreme Court action either before this court or the Court of Appeals.
¶3We may assume that something of the kind may have been in back of counsels’ mind and presume that it was mentioned in the argument before the Court of Appeals, for the Court of Appeals in its opinion did take occasion to indicate that there was no such limitation on the jurisdiction of the Domestic Relations Court as plaintiffs may have feared. Plaintiffs seem to regard that dictum as an allowable credit to them for bringing the Supreme Court action. The fact is that it was an additional reason, beside the main holding that the Supreme Court had no jurisdiction, why plaintiffs should not have brought the Supreme Court action.
¶4In my opinion there was never any reasonable likelihood of success in the Supreme Court action or necessity or justification for proceeding in that court. Plaintiffs have made no showing that proceeding in the Supreme Court was a necessary preliminary gambit to a successful proceeding in the Domestic Relations Court.
¶5I would modify the order appealed from to the extent of granting plaintiffs partial summary judgment and allowing them an assessment for the value of their services rendered *67in the Domestic Relations Court. I would not allow them any compensation for services rendered in the Supreme Court action.
¶6Breitel, Frank, Várente and Bergan, JJ., concur in Per Curiam opinion; Peck, P. J., dissents in part, in opinion.
¶7Order denying plaintiffs’ motion for summary judgment reversed and summary judgment granted. Settle order on notice.
¶8Order denying defendant’s motion for summary judgment unanimously affirmed.