Ryckman v. Parkins

5 Paige Ch. 543 | New York Court of Chancery | 1836

The Chancellor.

There is no foundation whatever for the claim for payment of the complainant’s counsel fees, out of the fund which belongs to the defendant, or to his other judgment creditors. If the receiver has employed any of the Complainant’s counsel to assist him in the recovery or protection of the fund, in the performance of which services they have acted as his counsel, and not in the character of solicitors or counsel for the complainant, they must look to the receiver for payment. As a general rule, however, the receiver is not allowed to employ the solicitors of either of the parties in the suit to assist him in the discharge of his duties. The solicitors of the several parties are bound in duty to their clients to watch the proceedings of the receiver, and to see that he faithfully discharges his trust. The undertaking to act as the solicitor or counsel for the receiver, under such circumstances, would therefore frequently cast upon the person thus assuming to act, inconsistent and conflicting duties ; both of which duties could not properly be discharged by the same person. 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 a defendant, except where the counsel has been employed to obtain or create such fund for the joint benefit of both parties. Where the interests of the parties are adverse, nothing beyond the legal taxable costs can be allowed by one party as against the other. The application for counsel fees must therefore be rejected.

The decree in this case, which was final as to the right of the complainant to obtain satisfaction of his judgment out of the defendant’s property, directed the payment of the amount due on the judgment at the date of the decree ; to" be paid by the receiver out of the effects of the defendant. And if that payment was delayed for the purpose of getting in the estate, and converting the same into money, it is right and proper that the complainant should be paid the legal interest upon what was then due, until the debt was actually paid. The statute allowing interest to be collected on executions, on judgments rendered upon contracts or upon prior judgments, (2 R. S. 364, § 9,) does not, in terms, extend to executions issued upon the decrees of this court. But upon the equity of that statute, the complainant is entitled to interest upon a decree in such cases. And the decree should be so drawn as to direct the payment of interest on the amount decreed, until the principal is paid according to the directions contained in the decree; so that the interest may be levied upon execution. In the present case, as the fund is in the hands of the office* of the court, he may be directed to pay the interest "which accrued after the date of the decree, although the decree itself contained no express direction to that effect in case the payment should not be made immediately.

Whether the complainant is entitled to interest, intermediate the docketing of the judgment and the entry of the final decree of this court, depends upon the question as to what was the amount due upon the judgment at the time the decree was made. That is, the amount which the receiver was then directed to pay. And if no interest was then due upon the judgment, none can be allowed.under this deéree, which cannot be altered except upon a rehearing. • If the judgment had been founded upon contract, the plaintiff would have been entitled to interest thereon; and the amount due at the date of the decree would, in that case, have been the aggregate amount of the judgment and the interest thereon from the time such judgment was rendered. But, upon a judgment in tort, no interest is recoverable, except as damages for the detention of the debt. And a decree for the payment of the amount of a judgment, in such a case, but containing no direction as to the interest or damages, would only authorize the Collection of the-original judgment. In Stafford v. Mott, (3 Paige’s Rep. 100,) which is somewhat analogous to the present, I arrived at the conclusion that a direction to a master to ascertain the amount due on á judgment, which judgment did not, per se, carry interest, was not a direction to compute and allow interest; but that the amount due on a judgment in tort, was the sum for which such judgment was entered, including the costs. As a general principle, a court of equity does not allow interest on unliquidated demands, or on judgments upon which interest cannot be levied by execution. But when the demand has been liquidated by the report of a master, or the decree of this court, it is the usual course here to allow interest from that time:. (Hunn v. Norton, Hopk. Rep. 344.)

The statute, under which the bill in this cause was filed, authorizes the court to decree satisfaction out of the defendant’s _ . . _ . . „ . 1 effects and choses in action, &c. of the sum remaining due on the judgment. In ordinary cases, therefore, the court will not decree the payment of precedent interest, upon judgments in tort; except in those cases where the defendant has fraudulently assigned or transferred his property, which would otherwise have been liable to the execution at law. In this case, it is not alleged, or even suggested, that the defendant ever had any property in this state which was liable to be sold upon execution. Neither has he delayed the complainant in obtaining bis decree, by a vexatious defence or protracted litigation. There is nothing shown, then, to sustain the claim for interest prior to the decree, or to take this case out of the general rule. This part of the complainant’s claim must therefore be disallowed. And as he has succeeded only as to a part of his application, and has subjected the fund belonging to others to the expense of opposing the residue of his claims, the costs of the motion are not allowed to him , which costs would have been allowed, if he had limited his claim to the interest, on the judgment, which has accrued subsequent to the decree for payment

An order must be entered directing the receiver, out of the fund in his hands, to pay interest on the amount of the judgment from the date of the decree, and on the costs from the time of taxation, to the time when actual payment was made.

The costs of Thison and Stephenson, in opposing this application, are also to be taxed and paid by the receiver out of the fund in his hands. And the trust of the receiver is then to be considered at an end, so far as concerns the complainant in this suit; but not as to other suits, in which he has been appointed the receiver of the defendant’s estate and effects.