Opinion
File No. 28734
Bernard Greenberg; George W. Crawford, Attorneys for the Plaintiff.
Wiggin Dana, Attorneys for the Defendant.
The parties in the above action are in agreement that the costs as taxed by the clerk are correct insofar as they extend. The plaintiff by this motion seeks a further allowance of costs, predicating his claims on the following section of Section 2271, General Statutes, Revision of 1930: "In difficult or extraordinary cases in the Superior Court, where a defense has been interposed, the Court may, in its discretion, make a further allowance to the prevailing party, not to exceed one hundred dollars." The plaintiff was the prevailing party in the Superior Court in the action to which a defense was interposed and the question to be now decided is whether the case was "difficult or extraordinary". Held: While the action was simple in form, yet it was under the circumstances most difficult of preparation and presentation; as the pleadings were unusually voluminous, and as the final trial consumed forty trial days, it is found that upon the facts the allowance sought should be granted. The facts that the recovery was small and that the plaintiff only prevailed upon only one of the three claims that he made, does not alter or change the circumstances under which the case was tried.
MEMORANDUM FILED NOVEMBER 9, 1937.
See, also, p. 273, infra.
In the above entitled case the parties have agreed that the costs as taxed by the clerk are correct in so far as they extend. The plaintiff, however, moves the Court for a further allowance by way of costs. The basis of this motion is found in Section 2271 of the General Statutes and the portion thereof which is applicable thereto reads as follows:
"In difficult or extraordinary cases in the superior court, where a defense has been interposed, the court may, in its discretion, make a further allowance to the prevailing party, not to exceed one hundred dollars."
That the case was in the Superior Court, that a defense was interposed and that the plaintiff was the prevailing party therein there can be no question for these facts are obvious from the record. If then it can truthfully be said that the case was difficult or extraordinary the Court would be justified in making the further allowance requested in the plaintiff's motion, otherwise it would not. The action was primarily one in debt which while not extraordinary in form was under the circumstances one most difficult of preparation and presentation. The pleadings were unusually voluminous for an action of its type and aside from many days consumed in hearings before a committee upon the issues of a motion for disclosure and the main issues of the case, its final trial before the Court consumed about forty trial days and involved the presentation of some fourteen thousand exhibits. While it is true as claimed by the defendants the plaintiff prevailed upon but one of his three claims and while this claim was insignificant in amount when compared with the others, the attitude of the defendant respecting it compelled the plaintiff to expend an unusual amount of time and effort in order to properly present it. While ordinarily the presentation of a claim of this description would probably furnish no proper basis for a conclusion that it was difficult, the presentation of the particular claim under the particular circumstances and conditions of the instant case leads to a contrary conclusion. It is therefore found that all of the elements provided for in the aforesaid statute are based upon facts which justify the allowance sought.