the New Jersey rule to be that a contractual stipulation of fee will be allowed if the Court finds that the amount stipulated is reasonable. Ultimately then, it is the Court which passes upon the propriety of the fee.
As to the enforceability of such a contract in the federal courts, we are again referred to local law. Manufacturers' Finance Co. v. McKey, 294 U.S. 442, 55 S. Ct. 444, 79 L. Ed. 982, cited in Pack-It, supra, 158 F.Supp. at page 152.
II. The Factoring Agreement
Paragraph 16 of Exhibit C-1, the factoring agreement, specifies payment of attorney's fees on the happening of the expressed contingencies. But paragraph 23 of the same agreement specifies that New York law shall govern its provisions.
A reading of the exhibits and the transcript of the Credit Industrial phase of this case does not reveal that the Court can apply New Jersey law as was accomplished by Judge Goodrich in the case of In re Rosen, 3 Cir., 1946, 157 F.2d 997, certiorari denied Fisch v. Standard Factors Corp., 330 U.S. 835, 67 S. Ct. 972, 91 L. Ed. 1282, for the very reasons he states. In that case there was obviously evidence that the contracted transactions, assignments, transfers, etc. took place in New Jersey. Here there is no such evidence. In fact the evidence is uncontradicted that the agreement was effected in New York, and the obligations of Magnus were to be met there.
So, under the principles of the New Jersey conflicts of laws rules (See Klaxon Co. v. Stentor Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477), New York law will be applied. Colozzi v. Bevko, Inc., 1955, 17 N.J. 194, and the cases cited therein at p. 202, 110 A.2d 545, at page 548.
The New York cases reveal that contracts calling for payments of fees and costs will be enforceable as any other contractual obligation. Commercial Investment Trust v. Eskew, 1925, 126 Misc. 114, 212 N.Y.S. 718; In re Mercantile Dye Works, 1941, 177 Misc. 454, 31 N.Y.S.2d 296; Manufacturers Trust Co. v. Cavell, 1954, 206 Misc. 818, 135 N.Y.S.2d 566. All of these cases dealt with contracts specifying the 15% fee proviso not contained in the instant agreement. In this agreement the right to be paid has been contracted and not the amount. Commercial Investment, supra, and the other cases cited above on this point went so far as to allow 15%. However, because the specific fee is not set forth here, the parties, of course, are deemed to have agreed to a just and reasonable fee. Here, again, the Referee is vested with a superior knowledge of the pertinent facts.
Therefore, the question of determining the attorney's fee under the factoring agreement made in New York will be remanded to the Referee for determination.
In all other respects, the Referee's findings of fact and conclusions of law are affirmed.
Let an appropriate order be submitted.