Cintas v. American Car & Foundry Co.

• Decision Date: 23 May 1944
• Docket Number: Nos. 220-222.,s. 220-222.
• Citation: 38 A.2d 193
• Parties: CINTAS et al. v. AMERICAN CAR & FOUNDRY CO. et al.
• Court: New Jersey Supreme Court

38 A.2d 193

CINTAS et al.

v.AMERICAN CAR & FOUNDRY CO. et al.

Nos. 220-222.

Court of Errors and Appeals of New Jersey.

May 23, 1944.

Dissenting opinion.

For majority opinion, see 37 A.2d 205.

PERSKIE, Justice (dissenting).

I am in accord with the result reached by the majority save that I regard inadequate the final allowance, under the order of July 9, 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 & Foundry Co., 133 N.J.Eq. 301, 32 A.2d 90.

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. New York & N. J. Water Co., 87 N.J.Eq. 390, 395, 101 A. 576; Grunstra v. New-Ark Petroleum Corp., 111 N.J.Eq. 451, 453, 162 A. 746; Barr v. Belmar, 118 N.J.Eq. 279, 179 A. 31; Dolan Dining Co. v. Cooks', etc., Local No. 399, 128 N.J.Eq. 210, 212, 15 A.2d 453.

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 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, 114 N.J.L. 413, 416, 177 A. 87. If I understand this definition it means that the exercise of a discretionary power must be bottomed on the cardinal factors of sound reason, fairness and justice. Thus in actions at law, in which the granting or refusing to grant a new trial because of an allegedly excessive verdict lies in the discretion of the trial court, this court will not review the judgment unless the asserted abuse of discretion is a ‘shock to reason and to justice.’ Nelson v. Eastern Air Lines, Inc., 128 N.J.L. 46, 58, 24 A.2d 371, 378; Chiesa v. Public Service, etc., Transport, 128 N.J.L. 69, 72, 24 A.2d 369. In actions in equity, the great weight which we give to factual findings in the court below imposes no restraint upon this court to make its independent factual findings on the issue of abuse of discretion or on any other relevant issue. Naame v. Doughty, 109 N.J.Eq. 535, 158 A. 501; Real Estate-Land Title, etc., Co. v. Stout, 117 N.J.Eq. 37, 175 A. 128; Zinkas v. Patrick, 127 N.J.Eq. 178, 12 A.2d 161. Hence notwithstanding the recognition we apparently continue to give to the principle that we do not, on review, disturb the ‘discretionary’ power of the ‘Chancellor’ to make an allowance to counsel unless there is an abuse of discretion, the fact is that we make our independent findings as to whether such allowance is or is not based upon sound reason, fairness and justice. Reference to a few of the many typical cases should suffice. Is the allowance ‘fair and reasonable’? Grubman v. American General Corp., 132 N.J.Eq. 372, 373, 28 A.2d 184, 185. Is there ‘justification’ for it? Dolan Dining Co. v. Cooks' etc., Local No. 399, supra. Is it ‘proper’?...