Summary
In Diocese of Trenton v. Toman, 70 Atl. 881, I held, when Vice Chancellor, that under the chancery act (P. L. 1902, p. 540, § 91) the allowance of a counsel fee to complainant was discretionary.
Summary of this case from Beall v. New York & N. J. Water Co.Opinion
08-13-1903
DIOCESE OF TRENTON v. TOMAN.
On application for costs and counsel fee. Denied.
For former opinion, see 70 Atl. 606.
WALKER, V. C. The bill in this case was filed to restrain the defendants from propelling automobiles through a certain alleyway onto a lot to which the way is appurtenant, and thence onto another lot of the defendants lying beyond and to which the way is not appurtenant, and also to restrain them from such use of the alleyway, because it is alleged that an automobile is not a carriage (the way being reserved as a carriageway), and that the propulsion of the automobiles through the alleyway constitutes a nuisance. The complainant has prevailed in the first contention, and the defendant in the last two contentions. The decree is now to be settled, and the complainant asks for costs and counsel fee against the defendants.
The cases are numerous in this state, both at law and in equity, that, where each party succeeds in part, neither is entitled to costs against the other. 2 Ann. Dig. N. J. p. 2744, § 30. The test, I take it, is that if the complainant succeeds on one or more substantial Issues, and the defendant likewise succeeds on one or more substantial issues, neither is entitled to costs as against the other; and such has been the result in this case. Besides, the chancery act provides (P. L. 1902, p. 538, § 84) that costs in this court shall be discretionary, except where it is otherwise directed by law. There is no act making an award of costs compulsory upon the court in such a case as this one. The chancery act (P. L. 1902, p. 540, § 91) also provides that it shall be lawful to include in the complainant's costs, to be collected as part thereof, a counsel fee to be fixed by the Chancellor on final decree. This is something that may or may not be done, in the discretion of the Chancellor, in cases where costs are given against a defendant; but where the complainant does not recover costs he cannot have a counsel fee awarded.
The result is that the decree for injunction in favor of the complainant and against the defendants, to the extent indicated in the opinion already filed, will be advised, but without costs to either party as against the other.