Struthers v. Christal

New York Court of Common Pleas

Struthers v. Christal

3 Daly 327

DecidedSeptember 15, 1870

StatusPublished

This text of 3 Daly 327 (Struthers v. Christal) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Struthers v. Christal, 3 Daly 327 (N.Y. Super. Ct. 1870).

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Opinion

Robinson, J.

This is an action by one partner against his copartners for a settlement of the copartnership affairs. A receiver of the copartnership assets has been appointed, and, pending the suit and before judgment, plaintiff’s attorneys apply for an allowance out of the copartnership funds in the hands of the. receiver towards their compensation for services in the action. It is stated that the receiver is about to pay a dividend to the. creditors of the parties, but no such action by him, so far as appears, is warranted by any judgment of the court (of which he is the mere minister), and it is wholly unauthorized.

Can the funds of the partnership, in the hands of the receiver, be subjected, before final judgment, to any such sum-! mary appropriation to the compensation of the attorneys conducting the proceedings for the winding up of the affairs of the copartnership ? I am not referred to any case allowing costs or allowance to a party, pendente Ute.

Even as between party and party the counsel for the complainant has in no case a right to be paid extra counsel fees out of a fund belonging to the defendant, except where the counsel has been employed to obtain or create such fund.

The Code repealed all pre-existing statutes establishing or regulating the costs and fees of attorneys, solicitors, and counsellors in civil actions (Code, § 303); but provided that “ there might be allowed to a prevailing party upon the judgment certain sums by way of indemnity for his expenses in the action, which allowances (in the act) are termed costs.” By § 306, in eases including those of this character, “ costs shall be allowed or not in the discretion of the courts

A coiu’t of equity has no inherent jurisdiction to award costs-[329]*329independent of statutory authority. Since these enactments I am not pointed to, nor am I aware of any'statute or authoritative decision of any court of this State allowing payment of counsel fees out of a fund in court, pendente lite, or the making of any preliminary order involving the right to that fund before final judgment. (See Downing v. Marshall, 37 N. Y. 380, 391, 393.)

The motion denied.

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Robinson, J.

This is an action by one partner against his copartners for a settlement of the copartnership affairs. A receiver of the copartnership assets has been appointed, and, pending the suit and before judgment, plaintiff’s attorneys apply for an allowance out of the copartnership funds in the hands of the. receiver towards their compensation for services in the action. It is stated that the receiver is about to pay a dividend to the. creditors of the parties, but no such action by him, so far as appears, is warranted by any judgment of the court (of which he is the mere minister), and it is wholly unauthorized.

Can the funds of the partnership, in the hands of the receiver, be subjected, before final judgment, to any such sum-! mary appropriation to the compensation of the attorneys conducting the proceedings for the winding up of the affairs of the copartnership ? I am not referred to any case allowing costs or allowance to a party, pendente Ute.

Even as between party and party the counsel for the complainant has in no case a right to be paid extra counsel fees out of a fund belonging to the defendant, except where the counsel has been employed to obtain or create such fund.

The Code repealed all pre-existing statutes establishing or regulating the costs and fees of attorneys, solicitors, and counsellors in civil actions (Code, § 303); but provided that “ there might be allowed to a prevailing party upon the judgment certain sums by way of indemnity for his expenses in the action, which allowances (in the act) are termed costs.” By § 306, in eases including those of this character, “ costs shall be allowed or not in the discretion of the courts

A coiu’t of equity has no inherent jurisdiction to award costs-[329]*329independent of statutory authority. Since these enactments I am not pointed to, nor am I aware of any'statute or authoritative decision of any court of this State allowing payment of counsel fees out of a fund in court, pendente lite, or the making of any preliminary order involving the right to that fund before final judgment. (See Downing v. Marshall, 37 N. Y. 380, 391, 393.)

The motion denied.

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Bluebook (online)

3 Daly 327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/struthers-v-christal-nyctcompl-1870.

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