Wendell v. Lewis

8 Paige Ch. 613, 1841 N.Y. LEXIS 586, 1841 N.Y. Misc. LEXIS 47

• Court: New York Court of Chancery
• Decided: February 16, 1841
• Status: Published

Opinion

The Chancellor.

The question as to the right of the defendants’ solicitor to be allowed for his attendance on the hearing and upon the examination of witnesses, &c. cannot be settled on this application. This is an application to review the decision of the taxing officer upon the ground that he has decided erroneously ; and not a motion for a retaxation upon the ground of a discovery of new evidence in opposition to the claim of the solicitor for the services charged. The solicitor having charged for these services in his bill, and made the usual affidavit, as required by the 130th rule, that the services were actually rendered, if the fact was o then wise, the complainant should have produced his affidavits, or other evidence, in opposition to those charges before the taxing officer on the taxation ; or he must at least show some good reason why it was not then done. Where a solicitor charges for services in his bill of costs, and swears that the services were performed, it is the duty of the taxing officer to allow for those charges, if in other respects they are properly taxable against the adverse party, unless there is a preponderance of evidence against the alleged performance of the services. The adverse party is not without remedy in such a case if he can afterwards show that the charge was improperly made j for the taxation will not protect the solicitor from liability for the treble damages given by statute for receiving pay for services which were never rendered. (2 R. S. 651, § 6, 7.)

In this case, I think the affidavit of the complainant’s solicitor, even if it had been produced before the taxing officer, would not have been sufficient to prevent the allowance of an attendance fee upon the hearing of the cause both before the vice chancellor and on the appeal. If the solicitor actually attends upon the hearing of the cause it is not absolutely necessary that he should hear the whole argument, or take any part therein. The object of his attendance, as stated by Chancellor Kent in his note to this item of the fee bill of April, 1818, shows that a different construction would be erroneous. (Blake’s Chan. App. 119.)

I think the allowance for a separate answer for the widow of Stewart Lewis, who was in Philadelphia when the •answer was put in, was properly allowed. Even if it had been shown before the taxing officer that she was here at the service of the subpoena, it would have been unreasonable to have required her to make a journey from Philadelphia to Albany for the sole purpose of joining in an answer with the other three defendants who put in their answer together. It is evident this separate answer was not put in for the purpose of increasing the bill of costs of the solicitor ; and the rights of Mrs. Lewis were to a certain extent different from those of her sisters-in-law.

The expenses of the different stipulations and the order giving to the defendants further time to put in their answers, &c., were not properly taxable against the adverse party. These applications are usually made for the convenience of the defendant’s solicitor, and are not chargeable against the adverse party. By the practice of the English court of chancery, the costs of an application for further time to put in an answer, beyond that which is fixed by the rules of the court, are not allowed on taxation between party and party; but they are taxable as between the solicitor and his own client, where the further time was allowed for the benefit of the client, and not for the convenience of the solicitor merely.

The taxing officer was also wrong in allowing the full costs of putting in the further answers after the exceptions to the original answers for insufficiency had been sustained. No part of the costs of the argument of those exceptions should have been taxed against the complainant; and only so many folios of the further answers as would have been sufficient to have rendered the original answers perfect, .should have been allowed. Even where the complainant amends his bill upon the allowance of exceptions for insufficiency, the defendant is not allowed to tax against him the charges for perusing, amending, filing, swearing to and serving the answer to the exceptions and amendments ; as the expense of putting in a further answer to the exceptions is not increased by the amendments, except as to the additional folios in such further answer. (Stafford v. Bryan, 2 Paige’s Rep. 51.)

The charges for engrossing order to produce witnesses, for a copy of the order, in addition to the notice that it had been entered, and the copy of a case made by the defendant for the hearing, were not taxable against the complainant, and should have been disallowed. The taxing officer should not have allowed for two lists of the defendant’s witnesses for the complainant and the examiner. The 83d rule requires that a list of the witnesses shall be delivered either to the adverse party, or to the officer, before the examination commences. But a list for each is not required. The object of allowing the list to be delivered to the examiner, instead of the adverse party, was to provide for the case of the commencement of an examination when the adverse party, or his solicitor, was not present. Where the list of the witnesses has been delivered to the solicitor of the adverse party, therefore, either before or at the commencement of the examination, it is not necessary to deliver a copy of such list to the examiner.

I see no objection to the allowance made by the taxing officer for the abbreviations of pleadings, &c. for the use of counsel. The affidavit of the solicitor indeed showed that he made copies for the use of counsel instead of abbreviations. But as there is nothing in the rule declaring the extent of an abbreviation of a pleading for counsel, the adverse party cannot object that the abbreviation was so much longer than usual as to amount to a full copy ; as the expense thereof is the same. It is only in the abbreviations which are made for the use of the court that the rule restricts the solicitor to one-sixth of the number of folios contained in the original pleadings abbreviated. The court has repeatedly decided that under the present fee bill, the solicitor was not authorized to charge for the draft of his bill of costs. (See Stafford v. Bryan, 2 Paige, 52.) He was only entitled to charge for a copy of that bill delivered to the adverse party with the notice of taxation, and for another copy to be taxed and filed.

All the other defendants who appeared by the same solicitor, and who were brought before the court by the amendments to the bill, had separate and distinct interests from each other ; and as it became necessary for each purchaser to set up and swear to his own defence, that as to his purchase it was made without any notice of the alleged fraud in the original parties under whom he claimed his particular lot, it would have been unreasonable to have required them all to join in an answer ; when none of them probably had any knowledge or information as to the bona tides of the purchase of their co-defendants. These answers were all very short, and if the defendants had attempted to answer jointly and severally the aggregate numbers of folios would probably have been increased thereby ; for in relation to each parcel of land the purchaser thereof would have been obliged to state the particulars of his purchase, and the bona tides thereof, on his own personal knowledge, and his co-defendants must have stated the same thing upon their" information and belief merely; or if they had no information on the subject, it would have been necessary for them to say so, in some way which would enable them to swear to such joint and several answer. The putting in of these sepearate answers by defendants whose defences were thus several and distinct in their natures, was for these reasons not improper, even if not absolutely necessary ; and could not have been intended to swell the costs of the solicitor who drew the answers. It was therefore proper to allow the solicitor, upon taxation, for the ordinary expenses of each separate answer ; except as to the answer of the defendant who died before the cause was brought to a hearing. The suit never having been revived against the representatives of that defendant, and the solicitor having no claim upon any of the parties in whose favor the decree for costs was made for the expenses of putting in that answer, those expenses cannot be taxed as a part of their costs in the suit.

The remaining question, and the one which is the most important to the defendant’s solicitor, as well as to the profession generally, is whether a solicitor who is employed by-several defendants to defend a suit, is entitled to several bills of costs on a taxation between party and party, or even as between solicitor and clients, for retaining fees and other charges which are common to all the defendants for whom he appears..

Pursuant to a provision contained in the revised statutes, making it the duty of the chancellor to revise the rules periodically, with a view, among other things, to the diminution of all unnecessary costs, (2 R. S. 175, § 46,) the 130th rule, as adopted and promulgated on the day the revised statutes went into effect, directs, among other things, that where the same solictor appears for two or more defendants, or different solicitors who are partners appear for several defendants, and separate answers are put in or other proceedings had, by or for the defendants separately, the taxing officer, in the taxation of costs, either as between party and party or between solicitor and client, shall consider whether such separate answers or other separate proceedings were necessary or proper ; and if in his opinion any part of the costs occasioned thereby was unnecessarily or improperly incurred, the same shall be disallowed. A similar provision, in substance, is contained in one of the new orders of the English court of chancery. And the same provision, so enlarged as to reach the case of mere formal parties who appeared by separate solicitors, where their interest in the suit, if any, was joint and not several, was subsequently adopted by the court of chancery in Ireland, in the revision of its rules in November, 1834. (See Cook’s Ord. in Ch. 16, Rule 27; Smith’s Orders, 321, Rule 199.) In making this provision, as to the costs of separate proceedings by the same solicitor for different defendants, it was not deemed necessary to prohibit the allowance of distinct bills of costs for each defendant, or of double or treble charges for the same services performed for all of the defendants jointly ; as it was supposed to be the settled practice of this and of all other courts not to allow separate bills to be made out, or duplicate charges to be taxed, for services which were performed but once.

In the case of Morton’s ex’rs v. Croghan’s terretenants, (1 Cowen’s Rep. 233,) where several defendants appeared by the same attorney and put in pleas to protect their rights, to different portions of the premises against which the plaintiffs sought to enforce their judgments, the supreme court decided that only one retaining fee was taxable against the plaintiffs, in favor of the defendants who were entitled to costs upon the discontinuance of the suit against them. And the principle of that decision has even been extended, by the supreme court, to the costs of the attorney of several defendants in separate suits relating to the same matter, where one service only was performed for the joint or common benefit of all the defendants. (See Jackson v. Garnsey, 3 Cowen’s Rep. 385.) The supreme court in that case directed the whole costs in all of the suits to be taxed in one bill; and they allowed but one set of charges for the services of attorney and" counsel on the motion in all of the causes jointly. In the recent case of Jones v. Conyngham and others, in the court of queen’s bench in Ireland, (1 Jebb & Syme’s Rep. 360,) where the same attorney had appeared for several defendants in a libel suit, it was declared to be the uniform practice of the court to allow but one fee to the attorney in such cases. And in the case of Tarbuck v. Woodcock and another, decided at the rolls on the 3d of December last, (21 Legal Obs. 110,) Lord Langdale refused to allow costs against the complainant for two separate pleas, put in by the same solicitor for different defendants for whom he appeared. Only one bill of costs was therefore permitted to be taxed in favor of both defendants. In Starving v. Cousins, (1 Gale’s Rep. 159,) where the attorney appeared for several defendants, in an action of tort, and some of them succeeded in their defence and the others did not, the court of exchequer held that prima facie the attorney was employed by all the defendants jointly; and if so, those who had succeeded were only entitled to an aliquot portion of the costs of the defence. And in Gambrel v. The Earl of Falmouth, (5 Barn. & Adol. Rep. 403,) the court of king’s bench applied the same principle of taxation to two defendants who appeared by different attornies who were copartners. (See also Bartholomew v. Stevens & Edwards, 5 Mees. & Weis. Rep. 386; Griffiths v. Kynaston and others, 2 Tyrwh. Rep. 757; Griffith v. Jones, 1 Gale’s Rep. 254.)

In the present case, the solicitor who was retained by the four original defendants was entitled to his full costs, for so much of the defence as related to them, up to the time of his retainer by the new defendants who are made parties by the amendment of the bill. And a new retaining fee for solicitor and counsel should be allowed for the new defendants brought before the court by the amendment. They should also be allowed for the costs of their appearance and of separate answers, and for such other services as were necessary to be performed for them individually or collectively, in which the original defendants had no common interest with them ; and those costs it may be proper to tax in a separate bill.

The appeal, by all the defendants jointly, from the decree of the vice chancellor is in the nature of a new suit, and may also be taxed in a separate bill in behalf of all the appellants. But as this was a joint proceeding, only one retaining fee and one set of charges can be allowed upon the appeal. To this bill the defendant’s solicitor is to be permitted to add the necessary expenses of filing the remittitur, and of the motion to make the decree of the court for the correction of errors a decree of this court, if they are not already embraced in the bill as taxed ; and any other proper charges which were left out of the former bills through inadvertence.

The charges for the application to the court for the examination of Webber as a witness in behalf of his co-defendants were not properly taxable against the adverse party as costs in the cause, even if the application was successful. For if he was a competent witness, the necessity of a special application to the court must have arisen from the neglect of the defendants’ solicitor to enter a common order for his examination within the time limited- by the 73d rule for that purpose. And in no case can costs which have been rendered necessary by the negligence of a party, or of his solicitor, be taxed as costs in the cause, against the adverse party, who was not in fault in relation thereto.

The costs must be retaxed upon these principles, unless the parties can now agree upon the amount to be paid, without further expense. And if a relaxation shall be necessary, the defendants’ solicitor is to be at liberty to make out a new bill omitting all of the objectionable charges and adding thereto any proper charges which were omitted in the former bill by mistake; to which new bill he is to annex the usual affidavit in conformity with the provisions of the 130th rule of the court.

Neither party to have costs as against the other upon this application.