Brown v. Safeguard Insurance

Davies, J.

—The court will not allow the parties to discontinue the action without first paying to the plaintiff’s attorneys all costs which they have fairly earned at the present stage of the proceedings. Sections 308 and 309 of the Code provide, that in an action where a warrant of attachment has been issued, there shall be allowed to the plaintiff, upon the recovery of judgment by him, a certain percentage upon the value of the property claimed or attached. The amount claimed and the amount attached in this case are so large as to leave no question that an allowance of $60 is due, if any, that being the largest sum that can be claimed under section 308. The extra allowance in these cases can only have been intended as a compensation for the extra trouble and responsibility involved in issuing the attachment and directing the levy under it; for there are no subsequent proceedings before judgment which make attachment suits to differ from others. Here, then, the attorneys having rendered the whole service contemplated in section 308, are clearly entitled to the whole compensation which that section provides.

Although the language of the Code makes the payment of any allowance to the plaintiff contingent “ upon the recovery of judgment by him,” yet it is to be observed that section 304 makes the $10 costs allowed for proceedings before notice of trial contingent upon the same event. Here the one item has been earned just as fully and fairly as the other.

The case of Brace a. Beatty (5 Ahbotts’ Pr. R., 221) recognizes the right of the plaintiff’s attorneys to this allowance, and we believe that the general practice in this district supports it.*

*347Let the attachment be discharged, and an order of discontinuance entered, upon the payment by the defendants of seventy dollars costs and the disbursements.

That case has since been reversed. Reported post. See also Pratt a. Conkey (15 How. Pr. R., 21; S. C., 6 Ante, 482).