Brown v. Safeguard Insurance — 7 Abb. Pr. 345

Majority

p. 345

BROWN a. THE SAFEGUARD INSURANCE COMPANY OF NEW YORK AND PENNSYLVANIA.

Supreme Court, First District;

Special Term, November, 1858.

Headnote

Costs.^[1] —Right to Allowance.—Attachment.

In an action in which a warrant of attachment had been issued, the parties agreed before the cause was at issue upon a settlement, by the terms of which the plaintiffs were to discontinue on payment to their attorneys, of the costs.

Held, that the costs to be paid included a full allowance, under sections 308 and 309 of the Code.

Application for an adjustment of costs upon a discontinuance.

The defendant was a foreign corporation, and a warrant of attachment against its property was issued, under which the sheriff levied upon upwards of $9000 in money in the hands of the defendant’s agent. Before the time to answer expired, the suit was settled by the parties, and it was agreed that the attachment should be discharged, and an order of discontinuance entered upon payment of the costs by the defendants. The

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latter thereupon tendered to the plaintiff’s attorneys the amount of their disbursements, and $10 for proceedings before notice of trial; but they claimed. $60 extra allowance, and refused to discharge the attachment. The defendants then applied to the court to adjust the costs, and for an order of discontinuance.

S. B. Cushing, for the defendants.

Choate & Barnes, for the plaintiff.

—The court will not allow the parties to discontinue the action without first paying to the plaintiff’s attorneys all costs which they have fairly earned at the present stage of the proceedings. Sections 308 and 309 of the Code provide, that in an action where a warrant of attachment has been issued, there shall be allowed to the plaintiff, upon the recovery of judgment by him, a certain percentage upon the value of the property claimed or attached. The amount claimed and the amount attached in this case are so large as to leave no question that an allowance of $60 is due, if any, that being the largest sum that can be claimed under section 308. The extra allowance in these cases can only have been intended as a compensation for the extra trouble and responsibility involved in issuing the attachment and directing the levy under it; for there are no subsequent proceedings before judgment which make attachment suits to differ from others. Here, then, the attorneys having rendered the whole service contemplated in section 308, are clearly entitled to the whole compensation which that section provides.

Although the language of the Code makes the payment of any allowance to the plaintiff contingent “ upon the recovery of judgment by him,” yet it is to be observed that section 304 makes the $10 costs allowed for proceedings before notice of trial contingent upon the same event. Here the one item has been earned just as fully and fairly as the other.

The case of Brace a. Beatty (5 Ahbotts’ Pr. R., 221) recognizes the right of the plaintiff’s attorneys to this allowance, and we believe that the general practice in this district supports it.^[1]

* That case has since been reversed. Reported post. See also Pratt a. Conkey (15 How. Pr. R., 21; S. C., 6 Ante, 482).

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Let the attachment be discharged, and an order of discontinuance entered, upon the payment by the defendants of seventy dollars costs and the disbursements.