Murray v. Kelly
| Decision Date | 06 July 1961 |
| Citation | 14 A.D.2d 528,217 N.Y.S.2d 146 |
| Parties | , 43 Lab.Cas. P 50,390 James MURRAY et al., individually and as members of Milk Drivers and Dairy Employees Local 584, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, on behalf of themselves and in behalf of all other members of Milk Drivers and Dairy Employees Local 584, I.B.T.C.W. and H. of A., similarly situated, Plaintiffs-Respondents, and Harry Matinsky et al., Plaintiffs-Intervenors-Respondents, v. John KELLY et al., Defendants-Appellants. Jack Zipkin et al., individually and as members of Milk Drivers and Dairy Employees Local 584, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, on behalf of themselves and in behalf of all other members of said Local 584 similarly situated, Plaintiffs-Respondents, and John Cunningham et al., Plaintiffs-Intervenors-Respondents, v. David KAPLAN et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Joseph A. Teperson, Freeport, for plaintiffs-respondents.
Monroe Goldwater, New York City, for plaintiffs-intervenors-respondents.
Samuel J. Cohen, New York City, for defendants-appellants.
Before BOTEIN, P. J., and BREITEL, RABIN, VALENTE, and BASTOW, JJ.
[3825] Judgment, which among other things, granted counsel fees to the attorneys for plaintiffs and plaintiffs-intervenors, modified, on the law and on the facts and in the exercise of discretion, to the extent of reducing the fee awarded Joseph A. Teperson to $25,000 and that warded Thomas C. O'Sullivan and Goldwater & Flynn to $15,000, with disbursements as allowed, and is otherwise affirmed, without costs. It is not essential, to justify the allowance of counsel fees in a class action such as this, that the applicants prove the creation of a fund for the benefit of the class through their efforts. It suffices that as a result of the litigation, various benefits were obtained for the members of the local, such as elimination of financial abuses and the correction of faulty keeping of records and accounts, the establishment of safeguards to promote fair elections, the replacement of the former officers by an International Trustee and other advantageous changes. There is sufficient basis in the record to justify the finding and holding of the referee and Special Term that these benefits were achieved as a result of the litigation instituted by plaintiffs and plaintiffs-intervenors. We find, however, that in the light of the efforts expended and the results achieved, the allowances awarded were excessive, and therefore reduce them to the amounts above stated.
All concur except BREITEL, J., who dissents in part in following memorandum.
I am constrained to dissent, although I quite agree with the Court that it is not essential, in a class action such as this, that the applicants prove the creation of a fund in order to justify the allowance of counsel fees. While it would suffice to justify such an allowance...
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