Schwartz v. Poughkeepsie Mutual Fire Insurance — 10 How. Pr. 93

Majority

p. 93

SUPREME COURT.

C. Schwartz agt. The Poughkeepsie Mutual Fire Insurance Company.

Headnote

A. per eentage, under the Code, is allowed to the successful party in the second judicial district in all cases where there has been a trial. But this allowance must depend upon the circumstances of each particular case. It will not be allowed in consequence of the employment of extra counsel from abroad.

Orange Special Term,

November, 1854.

The plaintiff at the last Dutchess circuit, before Mr. Justice Brown, recovered a verdict against the defendants, and at this term the plaintiff moved for a per eentage allowance in addition to the regular bill of costs. The plaintiff’s attorney, Jacob B. Jewett, Esq., stated in his affidavit, that the examination of the question, whether the plaintiff had made an assignment of the policy after the loss had been incurred and the effect thereof, presented “ a difficult and extraordinary question,” and that on the trial of the cause counsel from New-York were in attendance.

In opposition it was shown that the plaintiff’s complaint contained about nine folios, and that the trial of the cause did not exceed two hours, and that the only question was one of fact, whether the plaintiff had or had not made the assignment contrary to the conditions of the policy.

J. B. Jewett, for plaintiff.

Leonard Maison, for defendants.

remarked, that it had been the practice in this district to allow a per eentage in addition to the costs allowed by the Code, in every case where there has been a trial > that if the defendant, by his pleading, put the plaintiff to extra

p. 94

expence in preparing for trial, he has no ground to complain, if the court shall impose upon him costs sufficient to remunerate the plaintiff that expence. This was the obvious meaning and design of the Code. But he wished the bar expressly to understand, that such per centage will not be allowed for the purpose of paying counsel fees to lawyers from New-York or anywhere else, generally. The allowing of a per centage depends upon the circumstances of each particular case—there cannot necessarily be any fixed general rule upon the subject. That this was an ordinary and plain case, and he would allow to the plaintiff one and a half per cent, on the amount of the verdict, and this without the costs of the motion. Costs of such motions have not been, and he thought should not be allowed.