Robinson v. Jackson

• Decision Date: 20 October 1936
• Citation: 187 A. 918
• Parties: ROBINSON v. JACKSON.
• Court: New Jersey Court of Common Pleas

187 A. 918

ROBINSON

v. JACKSON.

Court of Common Pleas of New Jersey, Bergen County.

Oct. 20, 1936.

Proceeding under the Workmen's Compensation Law by Selina Robinson, employee, opposed by Gerald B. Jackson, employer. On Selina Robinson's application for counsel fees on remittitur from Court of Errors and Appeals.

Order in accordance with opinion. See, also, 174 A. 227, 12 N.J.Misc. 613.

Nathan Rabinowitz, of Paterson, for prosecutor-appellant.

Herbert C. Dolan, of Newark, for defendant-respondent.

LEYDEN, Judge.

The prosecutor-appellant had an award in the Bureau and, on appeal to this court, the amount thereof was reduced. The Supreme Court, on certiorari, affirmed the judgment of this court (181 A. 704, 13 N.J.Misc. 858), and on May 14, 1936 the Court of Errors and Appeals (116 N.J. Law 476, 184 A. 811, 813, 105 A.L.R. 1466) reversed the Supreme Court and remanded the cause "for further proceedings in conformity with this opinion." The remittitur was filed on July 29, 1936. In the interim, chapter 172, P.L.1936, p. 409, was passed and approved on June 20, 1936 (N.J.St.Annual 1936, § **236—61). This act provides that the Court of Common Pleas may, in its discretion, allow to the party prevailing a reasonable attorney's fee to be taxed in the costs and paid by the unsuccessful party in cases where (a) the judgment of the Bureau is appealed to the Pleas, (b) the judgment of the Pleas is reviewed by the Supreme Court by certiorari, and (c) the judgment of the Supreme Court is reviewed by appeal to the Court of Errors and Appeals.

The present application is twofold: First, to enter judgment in accordance with the mandate of the Court of Errors and Appeals; and, second, for a reasonable attorney fee to the prosecutor-appellant in the Supreme Court and the Court of Errors and Appeals.

The defendant-respondent resists the application for the fees, insisting that the opinion of the Court of Errors and Appeals terminated the litigation to all intents and purposes before the passage of chapter 172, P.L.1936 (N.J.St.Annual 1936, § **236—61), and therefore the statute is inapplicable to the present situation. He further argues that an allowance under this statute affects his substantial rights, was not within the contemplation of the parties when the insurance contract was effectuated, and is therefore an impairment of that contractual obligation.

As appealing as the argument may be, the law, as I understand it, is otherwise. The Court of Errors and Appeals directed further proceedings in accordance with its opinion, and until its mandate was returned here, this court was not reinvested with jurisdiction in the premises. See Welsh v. Brown, 42 N.J. Law, 323, 325. The present litigation will, therefore, not be terminated...