Chester v. Jumel — 2 Silv. Sup. 181

Majority

p. 181

Stephen M. Chester, Respondent, v. Francois Henry Jumel et al., Appellants.

Supreme Court, First Department, General Term,

May 24, 1889.

Headnote

1. Costs, Additional allowcmce.—Additional allowances of costs, where the litigation principally arose out of the contest of the defendants inter sese, are properly charged against moneys belonging to them.

2. Same.—Where the suit is brought for the benefit of all the parties to it, in order to secure a settlement of their rights before a distribution of the find or property should be made, an allowance of costs to plaintiff, in a difficult and extraordinary action, is proper.

Appeal from an order of the special term granting an additional allowance of costs.

Everett P. Wheeler, for appellants.

Douglas Campbell, for respondent.

By the order from which the appeal has been taken, the sum of $500, in addition to the costs, was allowed to the plaintiff in the action, and, as the suit was brought for the benefit of all the parties to it, in order to secure a settlement of their rights before a distribution of the fund, or property, should be made, this allowance seems, under the circumstances, to have been proper. That the action was difficult and extraordinary is substantially free from doubt. Upon each side of the case that was clearly its character, and the allowance to the plaintiff does not appear to have been, in any manner, excessive.

p. 182

A further allowance of $1,000 was made to the defendant Campbell. The sum of $500 was allowed to the defendant Smith; and a like amount to the defendant Schermerhorn. His claim, as it was directed to be paid, should be reduced by the deduction of interest allowed from August 28,1880, to April 3, 1888, and a corresponding reduction should, consequently, be made in this allowance of costs.

As to the others no reason appears for interfering with them. They have been made payable out of a fund realized by the defendant Chambrun, and the Jumel heirs. No other person, therefore, had any reason to, or has complained of these allowances, and, as the litigation, protracted as it was, principally arose out of the contest of these defendants, the allowances were properly charged, against moneys belonging to them.

The order directing their payment, with the single exception which has been stated, seems to have been right, and, with the modification reducing the allowance to Schermerhorn in the proportion in which the moneys awarded to him have been reduced, should be affirmed without costs to either party.

Van Brunt, Ch. J., concurs.