In re Ryan — 53 N.Y. St. Rep. 926

Majority

p. 926

In the Matter of the Application of Thomas F. Ryan, as Receiver of C. A. Wyatt & Co., for reference of disputed claims.

(Supreme Court, General Term, First Department,

Filed June 30, 1893.).

Headnote

New trial—Conditions.

Upon the petition of the receiver of a firm, .disputed claims were referred, disallowed by the referee after a regular trial, and the repoit confirmed. A motion for a new trial was made, pending an appeal, on the ground of newly discovered evidence, and granted, on the condition that

p. 927

the receiver he reimbursed for the amount paid by him as referee's fees, and a partner who was not, in any case, liable on the claim, be paid costs and counsel fee. Held, that the condition was proper.

Appeal by the claimants, Rawitzer & Brothers, from an order granting a motion made by them for a rehearing of a claim presented by them to the receiver, upon the payment of certain costs.

Horwitz & Hershfield, for app’lts; Durnin & Hendricks, for resp’t Ryan; Kellogg, Rose & Smith, for resp’t Newhall.

The motion for a new trial was upon the ground of newly discovered evidence. One would suppose from the elaborate discussion in the briefs of counsel as to the effect of the newly discovered evidence that the learned judge at special term had denied the motion. We find, however, that the motion was granted, and that the appellants’ present complaint relates solely to the terms imposed upon them. The appellants seem to think that their motion should have been granted unconditionally. The propriety of the terms in detail is not discussed, and their last point is that the order should simply be modified so as to relieve them from those terms. We think the terms imposed were just and reasonable. This proceeding had all the attributes of an equitable action. There was a regular trial before a referee, to whom the matter was sent to hear and determine. After such full trial the referee’s report was against the claimants, and that report was confirmed. The claimants then appealed from the order of confirmation, and while that appeal was pending and undetermined they made this motion. It is obvious that a new trial should not be granted under such circumstances, except upon reasonable indemnity to the party who, without fault, is deprived of the fruits of success. Even in cases where a new trial is granted because the decision or verdict is against the weight of evidence, it is usually upon payment of the costs of the former trial. Benedict v. Johnson, 2 Lans., 97 ; Kennedy v. Harlem Railroad Co., 3 Duer, 659 ; Overing v. Russell, 28 How., 151 .

Here there were two parties who were before the court substantially as defendants. One was the special partner, Hewhall, and the other was the receiver, Ryan. They were both entitled to costs, but the court awarded no costs to the receiver. He was simply reimbursed -for a single item of outlay, namely, the referee’s fees upon the former trial. That this item was somewhat large resulted from the appellants’ vigorous but unsuccessful efforts to sustain their claim against the estate in the receiver’s hands. The respondents are surely not responsible for the amount of this disbursement, and it would have been an extraordinary exercise of discretion to set aside what was in effect a judgment, and thus favor the claimants with a new trial, without reimbursing the estate even for the disbursements of its successful defense. The court allowed the other party, Hewhall, costs of the motion and a counsel fee of $250. The sum thus awarded was entirely reasonable. In fact, it was plainly but a partial indemnity for the expense to which Mr. Hewhall had been put by the previous proceeedings. Ho costs were awarded in terms,

p. 928

except the costs of the motion, nor were the other disbursements of the proceedings, such as stenographers’ fees, allowed to either party. It comes to this: that one party, entitled to indemnity, was allowed the moderate sum of $260, and the other party, equally entitled to indemnity, was allowed but a single disbursement. There was in this no abuse of discretion, but a reasonable exercise thereof. The learned judge treated the proceedings as analogous to an action in equity, and doubtless intended to allow Mr. Newhall a sum which would in some measure represent the costs of the trial of such an action, with possibly a small extra allowance. The order should be affirmed, with ten dollars costs and the usual disbursements.

Van Brunt, P. J., and Follett, J., concur.