38 A.2d 193 | N.J. | 1944
Lead Opinion
The order of the court below is affirmed, with respect to the item of $31,839.50 for counsel fee and with respect to the item of $2,200 for moneys paid to the accountants, and reversed as to the item of $2,000 for counsel fee in this court and as to the item of $124.17 for printing the brief on appeal.
The cause is remanded to the Court of Chancery to the end that the order under appeal may be modified in accordance herewith.
Since appellants, Cintas, Unger and American Car and Foundry Company have prevailed in part, no costs will be allowed as between them, but costs will go in favor of the appellants Cintas and Unger, against Maranwood Corp. No costs are allowed Martha S. Levy, who appeared and filed a brief as amicus curiae. *306
Dissenting Opinion
I am in accord with the result reached by the majority save that I regard inadequate the final allowance, under the order of July 9th, 1940, to Mr. Milton M. Unger, solicitor of the complainant, of $31,839.50 for his services in connection with the recovery of dividends for the benefit of the preferred stockholders in this cause. Cintas v. American Car and FoundryCo.,
Ordinarily, I would not deem the mere difference of opinion as to the quantum of a counsel fee, for services rendered in a given cause, a sufficient justification for stating my reasons for differing with the majority. I do so in this instance because of the importance of the issues involved and the close vote in the disposition thereof.
The solicitor's ground of appeal is that the fee is inadequate and not on the ground of an abuse of judicial discretion. Is that fatal if he is otherwise entitled to an increase? I do not think so.
True, there are any number of cases which contain language to the effect that the allowance of a counsel fee and the amount thereof rests in the "discretion" of the "Chancellor," and that this court will not disturb his findings, on review, in the absence of an "abuse of discretion." Cf. Beall v. The New Yorkand New Jersey Water Co.,
How then is it to be determined whether an allowance to counsel in a given case is or is not the result of an "abuse of discretion?" The answer depends upon the meaning given to this phrase. It is an unfortunate phrase because it is not free from the inference that its exercise springs from a mind determined to accomplish a deliberate result without regard to lack of judicial power so to do. What does this phrase mean? Its meaning finds classic expression in the words used by Lord Mansfield in Rex
v. Wilkes, 4 Burr. 2527, 2530, which read as follows: "But discretion, when *307
applied to a court of justice means sound discretion, guided by law. It must be governed by rule not by humor. It must not be arbitrary, vague and fanciful, but legal and regular." Cf.State v. Then,
Thus the fact that counsel takes the position that the allowance made to him is "inadequate" and not that it was the result of an "abuse of discretion" does not preclude an increase of the allowance if in sound reason, fairness and justice he is entitled thereto.
I think that the allowance made is entirely inadequate for the capable services which the solicitor rendered and the extraordinary result he accomplished. Cf. Fountain v. Booth Flinn,
I think that the final allowance should have been $75,000 and not $31,839.50.
Mr. Justice Bodine, Mr. Justice Donges, Judge Rafferty, Judge Hague, Judge Thompson and Judge Dill join in this opinion.
No. 220 —
For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, HEHER, PORTER, COLIE, DEAR, WELLS, JJ. 8. *309 For modification — BODINE, DONGES, PERSKIE, RAFFERTY, HAGUE, THOMPSON, DILL, JJ. 7.
No. 221 —
For affirmance — None.
For modification — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, DILL, JJ. 15.
No. 222 —
For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, DILL, JJ. 15.
For reversal — None. *310