16 How. Pr. 364 | N.Y. Sup. Ct. | 1858
The question here presented is not without its embarrassments. The action belonged to that class of cases in which costs may be allowed or not, in the discretion of the court. (Code, 306.)
It is not a case in which the defendant had a right to make and plead a tender, under the Bevised Statutes, (2d Vol. 553 ;) such right is confined to actions at law; (9 How. 398 ; Thurston agt. Marsh, 14 How. 572;) nor is it a case where the plaintiff had a right to the additional allowances, as provided in § 308 of the Code, as no judgment had teen recovered. (Pratt agt. Conkey, 15 How. 27.) Indeed, he had- no legal right to
No provision is made for settling those cases in which the allowance of costs is in the discretion of the court. By section 322, provision is made in reference to costs upon a settlement before judgment, in the actions mentioned in section 304. That section relates to those actions known as actions at law, in which the allowance of costs is not discretionary in the court.
"What then should be the practice in a case like the present ? The defendant wishes to pay the mortgage debt before judgment, and is willing to pay costs. There is no statute giving the attorney an abstract right to. any costs, nor is there any statute giving to the defendant the right to tender the amount due with or without costs. (The New - York Fire and Marine Ins. Co. agt. Burrell, 9 How. 398.) This was a foreclosure case, and the defendant made a tender before judgment. The plaintiff proceeded to judgment, and then applied to the court for an additional allowance, which was granted. The defendant cannot then by a tender arrest the plaintiff in proceeding to judgment, and thus deprive him of his rights relating to costs or an additional allowance. I sayrights relating to costs, as those rights depend upon the discretion of the court. I suppose, however, if the court under § 306, allows costs to the plaintiff, then he will be entitled to the per centage as given by § 308, as that section reads, “ In addition to those allowances there shall be allowed to the plaintiff upon the recovery of judgment by him,” &c.
I think in a case like the present, the defendant may offer . to pay the amount due upon the mortgage, and such costs as he may think proper, and upon a refusal to accept the amount he may apply to the court for leave to pay the amount due, and such costs as the court may in its discretion allow, and that the court should entertain the application and permit the payment fixing the costs, and upon the payment being made order a discontinuance or stay of the action, as may be proper.
The allowance as provided by the Code, is not for any particular service, but in the language of Clerks, Justice, “it is made for services performed throughout the prosecution of the action, rather than for services rendered at any particular stage of it.” And if the plaintiff is entitled to such allowance after judgment, it is highly equitable that he should have a portion of it when the action is settled before judgment. The right to impose such terms rests, I admit, upon the equitable powers of the court, and not upon the statute. But the court would be greatly influenced by the statute as to the amount it would require to be paid, as the condition upon which the defendant x would be released.
The order would of course be conditional, and if the defendant should not choose to avail himself of it, the action would proceed to judgment, when the plaintiff would be entitled to the per centage allowance, in case the court in its discretion
It must be kept in mind that the defendant has no absolute right by which he can arrest the action before judgment. The plaintiff has the right to proceed to judgment, unless he is stopped by an order of the court. It is a general principle in equity, that when parties do what a court of equity, upon application would direct to be done, the court will sanction and sustain the thing done. If the attorney for the plaintiff and the defendant settle the action upon such terms as the court would direct, I do npt see why such settlement and arrangement should not be valid and binding. In all such settlements it will be incumbent upon the attorney that he see to it that no advantage be taken of the defendant, and that no greater sum be taken than the court upon an application would allow, as the question will be open to an examination by the court, upon the application of the defendant.
In the present case, the per centage as provided by the Code after judgment, amounted to $43.20, from this sum $16.04 were abated, leaving $27.16, which was included in the note. After examining the facts, I am satisfied that the amount claimed and included in the note, was no more than reasonable, and no more as I think, than the court would have allowed, as terms upon which an order as above indicated, would have been made upon the application of the defendant. In my opinion, the court upon the trial of this cause, should have sanctioned the settlement and directed judgment for the amount of the note. The judgment should be reversed, and a new trial should be had, costs to abide the event unless the defendant shall stipulate that the plaintiff take judgment for the amount of the note. If he shall so stipulate, then judgment to be entered accordingly, without costs to either party upon this appeal.
Justice Grover dissented.
