Letters Received to Chas. Stockdell Gray, Howard H. Barker [H.H. Barker], December 31, 1935

COLLINS & CORBIN COUNSELLORS AT LAW CLEMENT K. CORBIN ROBERT J. BAIN EDWARD A. MARKLEY CHARLES w. BROADHURST HOWARD F. MCINTYRE JAMES B. EMORY JAN 2 1935 1 EXCHANGE PLACE, JERSEY CITY, N.J. PATRICK F. MC DEVITT JOHN F. LEONARD JAMES J. LANGAN ADOLPH s. HUMMEL RAYMOND J. LAMB EARLE J. HARRINGTON STANLEY G. BROOKS December 31, 1935. Vincent P. La Porte, Admr. ad pros. etc. VS. United States Radium Corp. Chas. Stockdell Gray, Esq., Counsel, Globe Indemnity Co., 20 Washington Place, Newark, N. J. Howard H. Barker, Esq., Vice Pres., United States Radium Co. 535 Pearl Street, New York City. Gentlemen: On last Friday, December 27, 1935, at Trenton, I appeared before Judge Forman upon presentation of final decree in the above equity suit. Mr. Emmerglick appe ared for the plaintiff, Mr. Smith for the New Amsterdam Casualt y Company, Mr. Gray and I for the Globe Indemnity Company and Mr. Barker for the United States Radium Corporation. The form of decree as presented was not objected to either by the court or by Mr. Enmerglick, but the court brought up the subject of providing compensation to a limited degree for Mr. Emmerglick, counsel for the plaintiff and also to provide for payment of his dis- bursements. In fact, this matter had been called to the attention of counsel by the court before attending at Trenton, so that they might give it consideration. I prepared a memorandum on the legal right of the court to compel the United States Radium Corporation to make payment of the counsel fee and disbursements. While the law is not entirely clear it seems to be fairly clear that the e ourt has no right to allow a counsel fee to the defeated party as against the preva iling party. For instance, in the case of Higgins V. Baton, 204 Fed. 273 C.C.A. 2d Circuit) the court said: "Costs can seldom be awarded against a prevailing party unless he has been guilty of some fault or omission. In the case of Hodgman, et al V. Atlantic Refining Co., 20 Fed (2d) 949, the District Court for the District of Delaware held that while the allowance of costs was discretionary, that that discretion is not an arbitrary one. "In its discretion this court must be governed by the rule pertaining thereto. The general principle is that in suits in equity as in actions at law, the prevailing party is entitled to costs. This principle must be applied