Summary
In Weynberg v. Downey, 25 N.Y.S.2d 600, an action to foreclose a mortgage, one of the defendants was in the armed service, and an attorney was appointed by the court to represent him.
Summary of this case from Briner v. BrinerOpinion
January 29, 1941.
Smith Weynberg, for the plaintiff.
Jacob Aks, for the defendants.
The action is for mortgage foreclosure and one of the defendants owning a quarter interest in the property is in the United States military service. Under section 200 of the Soldiers' and Sailors' Civil Relief Act of 1940 (U.S. Code, tit. 50, Appendix, § 520), the court appointed an attorney to represent this defendant "and protect his interest" as the law provides. The question presented is whether the appointed attorney may be awarded compensation for his services. It is agreed that the act does not specifically or expressly mention the matter of compensation, being similar in that respect to the act considered in Davison v. Lynch ( 103 Misc. 311), and, as suggested in that case, an attorney so appointed in time of actual war should regard it as a patriotic duty to act regardless of compensation. At the present time, however, we are not in a state of war, and the applicable practice or the analogous practice is that governing compensation to a guardian ad litem (though the appointed attorney is not so called in the act). Thus, within the inherent power of the court, independent of act or rule ( Weed v. Paine, 31 Hun, 10; Matter of Robinson, 40 A.D. 30, 32; affd., 160 N.Y. 448), the attorney is allowed taxable costs in the action as an expense in the action.