Couch v. Millard , 1 How. Pr. (n.s.) 22 ( 1885 )

Hardin, J.

Costs of this action were in the discretion of the referee, and he has passed directly upon the question as one within his discretion (Code of Civ. Pro., sec. 3230; Chipman agt. Montgomery, 63 N. Y., 221; Gomley agt. Campbell, 66 id., 169; Lawrence agt. Lindsay, 68 id., 108; Blank agt. Obrien, 23 Hun, 82).

After the exercise of such discretion by the referee, it is not within the province or power of the special term to overhaul and overturn the conclusion of the referee (Stevens agt. Verianc, 2 Lans., 90; Woodford agt. Bucklin, 14 Hun, 444; opinion of Hardin, J., and cases cited therein; McLean agt. Stewart, 14 Hun, 476; opinion Hardin, J., and cases cited therein).

Whether this case fell within the case of Ten Eyck agt. Holmes (3 Sand. Ch., 428) and other kindred cases or not, was a question for the referee to consider and decide, and his conclusion must be accepted until disturbed by an appellate court having power to review the case upon its merits, and the decision of the referee in regard to costs (Woodford agt. Bucklin [supra].

In Burke agt. Candee (63 Barb.), I had occasion to state the rules applicable to applications for an extra allowance in difficult and extraordinary cases, and notwithstanding the adoption of the Code of Civil Procedure since that decision, the general principles then laid down remain. That case has been approved, cited and followed several times (21 Week Dig., 47; 31 Hun, 403; 48 How., 413).

Adopting the principles there laid down, nought remains in this case to be done, except to make an application of them to the case in hand.

It is very apparent that this case was both difficult and extraordinary, and required care, skill, ability and patient industiy to be bestowed in its trial before the referee, and in presenting properly the law and facts in arguments to the learned referee.

The proofs are very clear that much professional time and skill were bestowed upon the case. Therefore, an allowance suitable and commensurate with the skill and service bestowed should be allowed, in order to meet the provisions of law in that regard. It is very properly suggested by the learned counsel for the plaintiff that such applications are addressed to the discretion of the court Indeed, that was held in Hurd agt. Farmers' Loan Co. (16 Week Dig.), and in the exercise of discretion the court said a proper case therein had not been made for an allowance.

Here, an assignee assaulted a security held by defendants to indemnify them against accommodation liabilities assumed for the assignors, and sought to strike it down as fraudulent and void. He failed in the principle purpose of his bill, and within cases not unfamiliar, he has been charged with costs payable “first out of the fund.”

No good reason is furnished for withholding the application of the principles stated in Bank agt. Sand (supra). The principle subject matter of tbe litigation here was the chattle mortgage of $26,000. That has been sustained by the referee. Upon that mortgage it is proper to make the allowance. It is not easy to say just what sum shall compensate the parties for the expenditures of skill, labor and professional ability required by the protracted trial But upon the proofs before the court, together with the concessions made upon the argument, the conclusion is reached that three per cent on $26,000 will be suitable.

An order to that effect may be served and, if the form is agreed to, entered in Oswego, if not assented to in form it may be settled before me on two days’ notice, after service of a copy of this opinion.