In re J. B. Brewster & Co.

Second Circuit

In re J. B. Brewster & Co.

180 F. 109, 103 C.C.A. 42, 1910 U.S. App. LEXIS 4756

CourtCourt of Appeals for the Second Circuit

DecidedJune 30, 1910

DocketNo. 258

StatusPublished

This text of 180 F. 109 (In re J. B. Brewster & Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re J. B. Brewster & Co., 180 F. 109, 103 C.C.A. 42, 1910 U.S. App. LEXIS 4756 (2d Cir. 1910).

Pincite

Opinion

PER CURIAM.

Rong before the bankruptcy proceedings were instituted Brewster & Co. brought an equity suit in the state court against the bankrupts to enjoin the use of the word “Brewster” in connection with their business. All the issues were referred for trial. At the commencement of the trial, it was stipulated between the parties that “the referee shall not be limited! to the statutory allowance but that his fee shall be fixed at the rate of $25 per hour or fraction of an hour for the time occupied on the reference and in the preparation of his report.” It was further stipulated that each side should “pay one-half of the stenographer’s bill on presentation of the same, the prevailing party to be allowed to tax his share of the stenographer’s bill on presentation of the same, as a disbursement in the case.”

On April 22, 1908, the referee in the suit formally announced to the parties his decision in favor of the plaintiff, and on May 5, 1908, he duly signed and' delivered his report to the plaintiff, directing judgment in its favor with costs. The total amount of stenographer’s fees paid by plaintiff prior to referee’s decision was $999.99, and the referee’s fees were $3,825, the whole of which was paid prior to the filing of petition in bankruptcy on May 7, 1908. There were other taxable costs, but the present claim is confined to these two items. Judgment in the equity suit, which includes costs and disbursements, was not entered until after May 7, 1908.

The single question here presented is whether these items of claim are to be considered as costs in the equity suit, or as a debt due prior to the institution of bankruptcy proceedings upon a contract express or implied. We are referred to no authorities in the federal courts passing upon this question, nor have we found any. Undoubtedly there was an express contract between the bankrupts and the claimant as to these items, but that contract did not change their character. Charges such as these are part of the necessary expenses of a suit for which the defeated party is to reimburse the successful party. Stenographer’s fees are generally covered by some such stipulation, and, when so covered, are taxed with the bill of costs. Referee’s fees always go with the costs. The agreement proved here fixes their amount at a sum in excess of statutory rates. We concur with the district judge, and affirm his order.

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PER CURIAM.

Rong before the bankruptcy proceedings were instituted Brewster & Co. brought an equity suit in the state court against the bankrupts to enjoin the use of the word “Brewster” in connection with their business. All the issues were referred for trial. At the commencement of the trial, it was stipulated between the parties that “the referee shall not be limited! to the statutory allowance but that his fee shall be fixed at the rate of $25 per hour or fraction of an hour for the time occupied on the reference and in the preparation of his report.” It was further stipulated that each side should “pay one-half of the stenographer’s bill on presentation of the same, the prevailing party to be allowed to tax his share of the stenographer’s bill on presentation of the same, as a disbursement in the case.”

On April 22, 1908, the referee in the suit formally announced to the parties his decision in favor of the plaintiff, and on May 5, 1908, he duly signed and' delivered his report to the plaintiff, directing judgment in its favor with costs. The total amount of stenographer’s fees paid by plaintiff prior to referee’s decision was $999.99, and the referee’s fees were $3,825, the whole of which was paid prior to the filing of petition in bankruptcy on May 7, 1908. There were other taxable costs, but the present claim is confined to these two items. Judgment in the equity suit, which includes costs and disbursements, was not entered until after May 7, 1908.

The single question here presented is whether these items of claim are to be considered as costs in the equity suit, or as a debt due prior to the institution of bankruptcy proceedings upon a contract express or implied. We are referred to no authorities in the federal courts passing upon this question, nor have we found any. Undoubtedly there was an express contract between the bankrupts and the claimant as to these items, but that contract did not change their character. Charges such as these are part of the necessary expenses of a suit for which the defeated party is to reimburse the successful party. Stenographer’s fees are generally covered by some such stipulation, and, when so covered, are taxed with the bill of costs. Referee’s fees always go with the costs. The agreement proved here fixes their amount at a sum in excess of statutory rates. We concur with the district judge, and affirm his order.

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Bluebook (online)

180 F. 109, 103 C.C.A. 42, 1910 U.S. App. LEXIS 4756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-j-b-brewster-co-ca2-1910.