For the defendant in certiorari, Louis M. Mallin.
For the prosecutor in certiorari, Andrew F. Zazzali.
Before Justices Case, Donges and Colie.
The opinion of the court was delivered by
CASE, J. The question is whether an allowance of $650 counsel fee to Louis M. Mallin, attorney for the petitioner, in a workmen's compensation case, was lawfully allowed on December 22d, 1941, seven and one-half years after the Court of Errors and Appeals had finally determined the issue.
On February 6th, 1931, Theresa E. Toner filed her petition with the Workmen's Compensation Bureau on a claim arising out of the death of her husband. The respondents were the International Association of Bridge, Structural and Ornamental Ironworkers and Local No. 350 of the organization. The Bureau determined that the Local, and not the International, was the employer. The petitioner appealed to the Atlantic County Court of Common Pleas. The decision in the Pleas was that the judgment should run against the International Association, that, beginning August 12th, 1941, the Association should pay to the petitioner for the benefit of her son, Francis L. Toner, $20 a week for 233-3/7 weeks and that the Association should pay "at this time $500 as counsel fee to the petitioner's attorney (viz., Louis M. Mallin) for his services in prosecuting this claim." Slayback Van Order Co. v. Eiben, 115 N.J.L. 17, 25. The reason for deferring the compensation payments was that a verdict of $12,000 had been obtained for the claimant against a third party, as the tort feasor, and the weekly payments until August 12th, 1941, were considered chargeable against that recovery. The International Association sued out a writ
of certiorari in the Supreme Court to review the judgment against it. The Supreme Court, September 27th, 1933, affirmed the judgment of the Pleas. On October 13th, 1933, an order of remittitur to the Atlantic County Common Pleas was duly entered in the Supreme Court minutes by Mr. Mallin. Meanwhile, however, on October 10th, the attorney for the Association had served upon Mallin, as attorney, a notice of appeal to the Court of Errors and Appeals; and the appeal was filed October 14th, 1933. The Court of Errors and Appeals affirmed, and Mallin caused an order of affirmance and remittitur, dated May 4th, 1934, to be filed in the office of the clerk of the Court of Errors and Appeals on May 22d, 1934. On May 12th, 1934, Mallin wrote to the attorney of the International stating, "I received word of the affirmance of the judgment * * *. I would like to have the allowance of counsel fee of $500, together with the costs, paid to me as early as possible. Kindly advise me whether you can get this money within the next week." Discussion followed as to the amount to be paid, and Mr. Mallin wrote under date of June 5th, 1934: "I am willing, however, to accept the $500 fee plus the Court of Errors and Appeals taxed costs, amounting to $38.94. This excludes the taxed costs in the Common Pleas Court and the Supreme Court appeal. I feel this is a concession on my part, especially in view of the fact that I did not obtain an additional fee allowance in the Court of Common Pleas to which I was entitled had I pressed the issue. I shall appreciate your every endeavor to send me $538.94 within the next few days, until which time I will hold up further action in this matter" (italics inserted). Mallin receipted for the $500 attorney's fees on June 11th, 1934, and the $38.94 bill of costs on July 28th, 1934.
In August, 1941, when the International Association was arranging to make the weekly payments in accordance with the judgment, a dispute appears to have arisen between Mrs. Toner and Mallin as to whether or not she was obliged to make payments to him out of the amount thus coming to her in behalf of her son, and thereupon Mallin notified the Association that he claimed a lien on the moneys. Thereafter,
September 6th, 1941, Mallin, by the usual ex parte procedure, procured a new order of remittitur from the Supreme Court and, having done this, applied for and obtained an order from the Pleas providing:
"Ordered that Six Hundred and fifty Dollars ($650.00) be fixed and allowed Louis M. Mallin, Esq., for his services as counsel in the Atlantic County Court of Common Pleas, Two Hundred Dollars ($200.00) the New Jersey Supreme Court, Two Hundred and Fifty Dollars ($250.00) and Court of Errors and Appeals Two Hundred ($200.00) to be paid by the ...