53 N.Y.S. 193 | N.Y. Sup. Ct. | 1898
The Lebanon Springs Railroad Company was organized in 1852 under acts of the legislatures, of New York and Vermont. In July, 1867, it executed to the Union Trust Company of New York a mortgage to secure bonds to the amount of $2,000,000. In January; 1870, it.consolidated with the Bennington & Rutland Railroad Company under the name of the Harlem Extension Railroad Company. The new company, in April, 1870, executed to the Union Trust Company a mortgage to secure
There is no room for discussion as to the form of the judgment to be awarded,- which must be in exact accord with the decision of the Supreme Oourt of the United States. When a case has once been decided by that court and remanded to the court whose judgment is reversed, whatever was before the federal court and 'disposed of by its decree, is considered as finally settled. The subordinate court is bound by the decree as the law of the case, and must carry it into execution according to the mandate. It Cannot vary it, or examine it for any other purpose than execution, or give any
' Should the subordinate court fail to give full effect to the mandate, its action may be controlled by a writ of mandamus. City Bank, Petitioner, 153 U. S. 246; City Bank v. Hunter, 152 id. 513; In re Washington & Georgetown Railroad Co., 140 id. 91.
The further questions arise, whether this court has the power to grant costs and an additional allowance; whether having the power it should exercise it in a case where its own judgment'sustained ■at General Term and by the Court of Appeals has been reversed by the Supreme Court of the United States, and if allowed, the basis upon which the additional allowance should be computed. The action being in equity, if the power exist, the granting or withholding of costs does not depend upon the statute, nor does it absolutely depend upon the final determination of the cause, but rests in the discretion of the court, in. this as in all other things, to be exercised in accord with well-settled principles, not capriciously.
The Supreme Court of the United States having sent the record with its mandate to the Court of Appeals and that court having remitted it .to this, it is our duty to give full effect to the judgment of the federal tribunal, and unless there be some limitation or express provision in the mandate or remittitur to the contrary'we must ■of necessity have the same power to. deal with all incidental questions, including that of awarding or denying, costs, in the same manner- as if the record had never been removed from our own ■files, and as both the mandate and remittitur are silent on this ■subject, it must follow that the power exists. Mason v. Pewabic Co., 153 U. S. 361; Hinckley v. Morton, 103 id. 764; Nassau & Lowell Railroad Co. v. Boston & Lowell Railroad Co., 5 U. S. App. 97.
This being so, should they be allowed?-
While it is true that the Central Bank has finally succeeded as ■against the view of the courts of this state, it has none the less been successful. '
A proper tenacity of opinion is commendable, but any action tending to create the impression of judicial resentment is at variance with the best traditions'of a tribunal to' whose arbitrament is intrusted the important questions with which our Supreme Court is daily, evenly hourly, called upon to deal.
The Code provides that in any difficult and extraordinary case, where a defense has been interposed, the court may, in its discretion, award to any party a !sum not exceeding 5 per centum upon the sum recovered or claimed or the value of the subject-matter involved, not exceeding in the aggregate $2,000. The amount involved, so far as the defendant, the Central Bank of Boston, was concerned, was the sum adjudged to be due it, viz.: $250,000, with interest. Views as to the adequacy of compensation for legal services vary greatly. Mental attitude, previous experience and environment are all factors tending to mold the opinion of clients and the bench upon this delicate but important subject. As a rule, the bar has not suffered from excessive modesty in presenting its claims, nor has the bench been.unduly prodigal in allowing them.
That this litigation was important, is evident. That the cause was both difficult and extraordinary, cannot be disputed.
I said, when National Lead Co. v. Dauchy, 22 Misc. Rep. 372, was before me, that the statute should receive a fair, even a liberal, construction, and that in important and substantial litigations, a proper allowance should be made, due regard being had to the situation of the defeated party. Considering the importance and difficulty of this cause, the eminence and ability of counsel' retained, and the final success, of the defendant, an additional allowance of $2,000 does not seem to me excessive, and that sum, with the other taxable costs and those allotted by the Supreme Court of the United States are awarded, and may be taxed.
Ordered accordingly.