National Lead Co. v. Dauchy

22 Misc. 372, 49 N.Y.S. 379

• Court: New York Supreme Court
• Decided: January 15, 1898
• Status: Published

Opinion

Clearwater, J.

The plaintiff sued to recover $19,354 for white lead, oils, etc., sold by it to the defendants, and delivered to various customers of the defendants at different times and in different places, as directed by them. An attachment was obtained and. is still in force. A bill of items was demanded and served. A defense was interposed, which put in issue the sale and delivery of upwards of 300 items of the plaintiff’s claim, proof of which was. thus required, and was made.

The cause was tried before a referee, who gave judgment for the plaintiff in the sum of $20,207.11, and who certifies that in his opinion the case was difficult and extraordinary, and that the. plaintiff is entitled to an additional allowance. The granting of this is opposed by the defendants upon the ground that the action is an ordinary, and not an extraordinary and difficult one. -

In a general way, it may be said that most actions are ordinary, in that similar causes are frequently before the courts; but save for the fact that the form of the action is contract, this cause was neither usual nor simple, and clearly involved more than ordinary labor and preparation by counsel.

The statute should receive a fair, even a liberal construction,' and in important and substantial litigations, such as this, a proper' allowance should be made, due regard being had to the situation of the defeated party.

An additional allowance of $500 is granted, and may be taxed with the plaintiff’s costs.

Motion granted.