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In re the Assignment of Thomas M. Barr & Co.

56 N.Y. St. Rep. 742 Court N.Y.C.P. English

Delivered by Pryor, J.

Contents

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p. 742
In the Matter of the Assignment of Thomas M. Barr & Company.
(New York Common Pleas, General Term,
Filed January, 1894.)

Headnote

Assignment for creditors—Costs.
Upon the trial of a disputed claim under the act as to the assignment for creditors, costs and a reasonable counsel fee may be awarded to the prevailing party.
Myers & Anahle, for claimant; Arnold, Oreen & Patterson, for assignee.

Upon a claim against an assignee for the benefit of creditors for damages from a breach of contract by the assignors, the controversy was referred to Stephen P. Nash, Esq., pursuant to the provisions of the statute; and application is now made for confirmation of his report.

Whether the decision of the referee be open to revision at special term ( 10 Daly, 75 ) is not mooted by counsel, and I shall act upon their acquiescence.

The conclusion of the learned referee against the validity of the claim is satisfactorily supported by the able argument accompanying his report It is fortunate for the interests of justice, and greatly in alleviation of the labor of the court, that the question in dispute was submitted for determination by a gentleman so qualified by sound judgment and professional learning to decide it.

The report is confirmed.

For services in the case, counsel for assignee solicit a compensation beyond taxable costs, and whether it be competent to the court to concede their demand, is the real question in controversy before me.

In opposition to the allowance, counsel for the claimant cite cases arising under the provisions of the Code of Procedure. But the problem here is to be solved by recourse to the assignment act, and that, in terms, authorizes the court “in its discretion to award reasonable counsel fees and costs.” Laws of 1878, chap.

p. 743
318, § 26 ; 10 Edmunds Statutes at Large, 627. Matter of Fairchild, 10 Daly, 74 , and Matter of Risley, 10 id., 44, are explicit adjudications of the point in favor of the assignee.

Considering the intricacy of the question involved, the research expended upon it, and the time occupied in the trial, I conclude that $450 would not be an excessive recompense to counsel.