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Hirsch v. Tushill

Decided: June 29, 1988.

WILLIAM S. HIRSCH; WILLIAM PITT, III; PERCY C. STANLEY; EUGENE R. BEARDSLEE; THEODORE J. PYRTEK; HAROLD BUSHBERG; FRANK STUHLMAN; LEONARD ALCARO; DONNA MOTORS, EMIL J. ABAGNALE, PROP.; T.G.S., INC.; WILLIAM CADIEUX; HARRY CORSON; AND MARGO REBEIL, PLAINTIFFS-APPELLANTS,
v.
TUSHILL, LTD., INC.; AND JAMES P. TUCHINSKY; RUIZ AND SONS AUTO SALVAGE; UNITED GRAPHICS CORPORATION; AND NEW JERSEY NATURAL GAS CO., DEFENDANTS, AND JERSEY CENTRAL POWER AND LIGHT COMPANY, DEFENDANT-RESPONDENT



On certification to the Superior Court, Appellate Division.

For modification and affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, O'Hern, Garibaldi and Stein. Opposed -- None.

Per Curiam

[110 NJ Page 644] A jury returned a verdict in favor of plaintiffs against defendant Jersey Central Power & Light Company (JCP & L).

Pending its appeal to the Appellate Division JCP & L posted a supersedeas bond, pursuant to Rules 2:9-5(a) and 2:9-6(a), staying execution of the judgment. The Appellate Division reversed the judgment for plaintiffs and awarded JCP & L its costs on appeal. The question now posed is whether the Appellate Division properly allowed JCP & L, as part of its taxed costs, the premium paid for the supersedeas bond. We conclude that the cost of the bond may not be allowed under the relevant statutes and court Rules. We therefore modify the Appellate Division's order.

I

The facts are few and undisputed. Defendant Tushill, Ltd., Inc. is engaged in the business of repairing and restoring antique cars. Plaintiffs, owners of twenty-three antique automobiles that were destroyed in a fire at Tushill's garage, filed suit against JCP & L and a number of other defendants, alleging, inter alia, negligence in the installation and maintenance of electrical service and in the supply of electricity, which plaintiffs claimed caused the fire.

The jury returned a verdict of $853,000 against JCP & L alone in favor of plaintiffs and two defendants-cross-claimants, the other named defendants having been found not liable. The trial court denied JCP & L's motion for judgment notwithstanding the verdict or in the alternative for a new trial.

In order to stay the judgment pending appeal, JCP & L posted a supersedeas bond, approved by the trial court, in an amount in excess of $1,000,000. See R. 2:9-5(a) and 2:9-6(a). In an unreported opinion the Appellate Division reversed, concluding that the evidence at trial failed to sustain even an inference that JCP & L was in any wise negligent. This Court denied certification. 104 N.J. 473 (1986).

Having prevailed on the merits of its appeal, JCP & L moved before the Appellate Division to recover its costs of appeal, totalling $18,729.50. See R. 2:11-5. Of the total amount,

$11,355.00 represented the net premium paid for the supersedeas bond. By order dated July 15, 1986, the Appellate Division granted JCP & L's application in toto. On September 8, 1986, that court denied plaintiffs' motion for reconsideration of the July Fifteenth order. This Court granted plaintiffs' petition for certification. 107 N.J. 88 (1987).

II

The allowance of costs is generally committed to the court's discretion. Fortugno Realty Co. v. Schiavone-Bonomo Corp., 39 N.J. 382, 396 (1963); Hughes v. Eisner, 8 N.J. 228, 229 (1951). However, inasmuch as the allowance of costs is "unknown to the common law," such an award must be provided for by statute or court Rule. In re Caruso, 18 N.J. 26, 38 (1955); United States Pipe and Foundry Co. v. United Steel Workers of Am., 37 N.J. ...


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