Pentz v. Hawley

2 Barb. Ch. 552

• Court: New York Court of Chancery
• Decided: February 21, 1848
• Status: Published

Opinion

The Chancellor.

The principal objection :to the .bill as taxed,xis-that the-,taxing officer lias:allowed;th.e expense of four answers,"in -part,-.when, as -.it is ¡insisted -.by-the ¡cortiplainant’s counsel, all the defendants iwho appeared ¡by¡the same-solicitor should have joined in one answer. The subpoenas were probably served upon the several defendants at different times. Fo-Schuneman appeared, and an order to answer was served upon his solicitor, about the middle of August; but the appearances of the other defendants were not entered until on or after the 20th of September. And the affidavit of the solicitor states .that the separate answer of Sehuneman was prepared before such solicitor , was retained by-the other defendants, and before he knew what their-defences were. As the answer was. not actually sworn to and filed until after, the solicitor vas retained by the other defendants, he might, perhaps, have gotten the time allowed, for Sehuneman to answer extended,- by. an,application to the court,or to a vice chancellor, upon .an affidavit of the fact that, the defences.of his. other clients «were the same and that he wished «to save the-expense.of separate answers. But as. the complainant was pressing on the suit against the first defendant,'without waiting; to see whether: the other defendants would appear in the cause, and «the time for answering had nearly expired when the . other defendants appeared, I think the solicitor of the defendants was not bound .to put his. client Schuneman to the expense, of such am order, or to alter his answer which had already been prepared for filing within the forty days allowed for that purpose. Nor-was he bound to commit" bis other clients- to«the« same defence, when they might bave-confiicting. rights "with the defendant Sehuneman, without giving them a reasonable time to ascertain that fact. It turned out afterwards,-that the defendants Green and Blackman set up defences which rendered improper for them to. put in answers different from-that of Sehuneman, and in some respects materially different from each, other.

As I understand-it, the bill was filed, to-compel all the defendants, who were alleged to be stockholders of the bankrupt rail-road company,-to contribute ratably to the debts of the corporation, according to the number of shares held by each, as stated in the complainant’s bill. If the complainant had succeeded, therefore, Sehuneman and the two Abells and the two Lockies would-have-had a common interest with the complainant in maintaining that Green was a stockholder to the amountof the fifty shares, as-stated in the bill, and that Black-man was also a stockholder of the company. On the contrary, Green was interested in reducing the amountof his stock to the twenty shares stated in his answer; but he had a.common interest with the complainant, and the other defendants, except Blackman and the receiver, in sustaining the alieg ation in the bill that Blackman was a stockholder, and was liable to contribute as such. The five first named defendants, for whom Powers appeared,, could not reasonably be required to join in answers which, if the facts stated therein should be sustained by proofs, would increase the amount of contributions for which those five defendants would be liable. Nor could Green, who admitted himself to be a stockholder to the amount of the twenty shares held in trust for him by Cornall and others, be reasonably required to join in the answer of Blackman; who denied his liability as a stockholder altogether, upon the alleged ground that the whole capital stock of the company had been taken up by others at the time when he became a subscriber, and that his subscription was therefore a nullity. For these reasons, I think the solicitor of these seven defendants was entitled to charge for that portion of the four answers which, has been allowed by the taxing officer.

Both charges for attending to oppose the special motion, of which notice had been given by the adverse party for the first day of the general term, and which was finally put over; until the next special term upon the application of the complainant’s counsel, appear to have been properly allowed. The case would have been different if the hearing of the matter had been postponed to another motion day upon the application of the counsel for the defendants, for his or their accommodation. (Frost v. Frost, 1 Barb. Ch. Rep. 492.)

The taxing officer properly disallowed the charges for abbreviating the schedules to the answers, so far as they were objected to, as not properly taxable, under, the fee bill. But as the objection was not made in reference to the answer of Schuneman, and the charge for abbreviating that answer did not show that it included the abbreviation of the schedule, it was overlooked by the taxing officer. It now appears, however, that the schedule was included in the 127 folios, for the abbreviating of which the charge was made." So that the bill of the solicitor for the defendants, as taxed, was in fact about $1 too much.,

It is not a proper ground for a relaxation, however, is behalf of a party who has appeared and opposed particular items in a bill of costs, that the taxing officer has, by inadvertence, allowed an item which was not objected to. The party applying for a relaxation, therefore, should pay the costs of opposing his application, if he does not succeed in obtaining a relaxation as to some one of the items objected to before the taxing officer. But the court will not permit the adverse party to retain, in his bill, charges which are clearly improper to be retained; although no objection was made to them upon the taxation. The $1,05 allowed for the abbreviating of the schedule annexed to Schuneman’s answer, must therefore be disallowed. The shorter way to disallow it, however, is to deduct it from the $15, to which the defendant’s solicitor is entitled for opposing this application.

The form of the order, therefore, will be that the motion for íetaxation in this suit be denied with $13,95 costs. And a ■ similar order is to be entered in the suit of Frederick Pentz against the same defendants.