Carlson v. Revere Beach County Fair & Musical Railway Co. , 227 Mass. 291 ( 1917 )

Braley, J.

It is stated in the record that the efforts and services of the counsel for the plaintiffs contributed materially in obtaining under the foreclosure sale a substantial surplus over the amount due on the mortgage, and the receiver concedes that, all parties to the litigation having been benefited, a reasonable amount should be paid to him out of the fund before a general distribution is ordered. Davis v. Bay State League, 158 Mass. 434. By an interlocutory decree from which no appeal was taken, the plaintiffs’ counsel was allowed a certain amount which, not having been equal to the sum claimed, he again petitioned for the allowance of the remainder. And an interlocutory decree having been entered denying the application, from which he appealed, we are asked to set it aside and to determine the merits of the question. But whether such an allowance shall be made is discretionary, and where 'the discretion has been exercised by the trial judge no appeal- would be sustained now to this court unless the action taken is shown to have been wholly unwarranted or so arbitrarily exercised as to be manifestly unjust, conditions not appearing in the case at bar. Bond v. Fay, 1 Allen, 212. Barnes v. Smith, 104 Mass. 363. Cashman v. Bangs, 200 Mass. 498, 504.

What has been said disposes of the plaintiffs’ appeal from the interlocutory decree awarding costs to counsel for certain of the defendants, who also rendered services alleged and found to have been of value in conserving the property, and, whether after the death of one of these counsel this decree was modified in any way by a later decree directing that further payment be made to the administratrix of his estate, from which the plaintiffs did not appeal, need not be decided.

By the terms of the report the decrees appealed from should be affirmed.

Ordered accordingly.