Pennsylvania Fire Ins. Co. v. American Airlines, Inc.

• Decision Date: 27 May 1960
• Docket Number: Civ. 20004.
• Citation: 184 F. Supp. 145
• Parties: PENNSYLVANIA FIRE INSURANCE COMPANY, a Corporation, Plaintiff, v. (1) AMERICAN AIRLINES, INC.; (2) A. & D. Diesel Service, Inc., et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

184 F. Supp. 145

PENNSYLVANIA FIRE INSURANCE COMPANY, a Corporation, Plaintiff, v. (1) AMERICAN AIRLINES, INC.; (2) A. & D. Diesel Service, Inc., et al., Defendants.

Civ. 20004.

United States District Court E. D. New York.

May 27, 1960.

Engelman & Hart, New York City, for plaintiff, Harold W. Rudolph, Myron Engelman, New York City, of counsel.

Seymour Goldstein, Brooklyn, N. Y., for defendant Banks Ship Rigging Corp.

Solomon Pearlman, New York City, for defendant Oil Tank Cleaning Corp. Alexander Ackerson, New York City, of counsel.

Sidney Goldstein, New York City, for defendant, Port of New York Authority. Meyer Schifrin, New York City, of counsel.

Joseph C. Victor, Brooklyn, N. Y., for defendant Consolidated Edison Co. of New York, Inc.

BARTELS, District Judge.

In this action of interpleader one of the defendants, Banks Ship Rigging Corp., moves for certain relief which will finally determine the matter. The nature and background of this proceeding have been set forth on the motion of plaintiff to compel the defendants to interplead (180 F.Supp. 239) and need not be restated.

Defendants People of the State of New York, United States of America, The City of New York, Consolidated Edison Co. of New York, Inc. and Liberty Mutual Insurance Company have withdrawn their claims and they are therefore dismissed as parties herein. Certain other defendants have failed to appear in the instant proceeding although duly served by the Marshal. Pursuant to agreement among the interested defendants, the claims of Bitumen Welding Supply Co., Inc., Harbor Marine Electric Co., Inc., and Frank Marra, doing business as New York Canvas & Rope Co. are adjusted to $1,658.54, $11,279.89 and $136.30, respectively, and are allowed. The claims of the remaining defendants herein are allowed in the amounts set forth in Schedule "A" annexed to the complaint.

With the disposition of the above claims, the following applications remain to be decided:

(i) Plaintiff prays, pursuant to 28 U.S.C.A. § 1920, for the allowance of costs and disbursements in the amount of $978.10 and the moving attorneys pray for the allowance of costs incurred with regard to the instant motion in the amount of $127.71 together with the amount of $107.50 costs with regard to service of the judgment herein. These sums represent out-of-pocket disbursements and their allowance being in the discretion of the Court (T. & M. Transp. Co. v. S. W. Shattuck Chemical Co., 10 Cir., 1947, 158 F.2d 909), they are hereby granted.

(ii) Plaintiff renews its prior application for counsel fees. Although there is authority allowing counsel fees to plaintiffs who have commenced interpleader actions (see Globe Indemnity Co. v. Puget Sound Co., Inc., 2 Cir., 1946, 154 F.2d 249), the allowance of such claims is not without doubt in proceedings under the Miller Act, 40 U.S.C.A. § 270a et seq. Massachusetts Bonding & Ins. Co. v. Antonelli Const. Co., D.C. Mass.1959, 173 F.Supp. 391. There is dicta, however, indicating that in a Miller Act case the awarding of such fees is proper if the claim is meritorious. United States for Use and Benefit of General Electric Co. v. Browne Electric Co., D.C.Va.1959, 168 F.Supp. 806, 808. In a proceeding of this...