The opinion of the court was delivered by: SUGARMAN
SUGARMAN, District Judge.
Alex L. Rosen, (hereinafter Rosen) attorney for the debtor and debtor-in-possession, Nazareth Fairgrounds and Farmers Market, Inc., (hereinafter Debtor), Melvin Lloyd Robbins, (hereinafter Robbins) attorney for certain stockholders of the debtor, Gilbert Sunshine, (hereinafter Sunshine) accountant for the debtor and Charles Seligson, (hereinafter Examiner) has each presented an application for compensation and reimbursement of expenses, pursuant to an order filed on July 28, 1965 confirming a plan of reorganization for the debtor.
Rosen has applied for compensation of $150,000 and reimbursement of expenses of $724.54. On September 28, 1953 Judge Alexander Holtzoff, then sitting in this district, made and entered an order which provided, inter alia :
"ORDERED, that Nazareth Fairgrounds and Farmers Market, Inc., debtor in possession be and it hereby is authorized to employ and appoint ALEX L. ROSEN, ESQ. to represent it as attorney and counselor in this and all other proceedings and actions."
The order originally submitted to Judge Holtzoff provided that Rosen be retained to represent the debtor "as attorney and counsellor in this proceeding under a general retainer." Judge Holtzoff denied that request by limiting Rosen's employment as debtor's attorney to "this and all other proceedings and actions." Since that date, Rosen has acted as attorney for the debtor.
Rosen's application lists various areas in which he rendered services for which compensation is sought. Those areas include: (A) The claims of Benjamin Margolis, Ida Mae Margolis, William McK. Shongut, Sarah Kason and Bernard L. Ungar, (hereinafter the Margolis group); (B) condemnation of real property of the debtor by the Commonwealth of Pennsylvania; (C) settlement of insurance claims of the debtor as a result of two fire losses; (D) proceedings with respect to the allowance and disallowance of stock claims; (E) proceedings with respect to the allowance and disallowance of general creditor claims; (F) leases entered into by the debtor; and (G) plan of reorganization for the debtor.
(A) The claims of the Margolis group.
The Margolis group filed the following claims in the reorganization proceeding:
February 9, 1955 - judgment creditor - $3,600 based on debtor's confession of judgment (refiled February 28, 1955);
February 9, 1955 - creditor - $25,000 representing his costs and expenses in connection with § 21a examinations of Margolis conducted by the debtor;
February 28, 1955 - stock claim - 17 shares of the debtor's stock.
February 9, 1955 - creditor - $3,550 representing balance due on a loan; February 28, 1955 - stock claim - 15 shares of the debtor's stock.
February 21, 1955 - judgment creditor - - $10,003.76, based on debtor's confession of judgment;
February 21, 1955 - stock claim - 10 shares of the debtor's stock.
February 28, 1955 - stock claim - 10 shares of the debtor's stock.
February 28, 1955 - stock claim - 2 shares of the debtor's stock.
In October, 1953 Rosen, as attorney for the debtor, commenced examinations of the Margolis group pursuant to § 21a of the Bankruptcy Act. Following examinations and a trial before Referee Joyce, a petition to review before the District Court, and an appeal to the Court of Appeals (Margolis v. Nazareth Fair Grounds & Farmers Market, Inc., 2 Cir., 249 F.2d 221), the Referee's order of October 11, 1956 voiding the judgments was ultimately sustained.
The stock claims of the Margolis group were also tried before Referee Joyce and on August 30, 1957 he disallowed them. Thereafter, after another proceeding before this court, dealing with 36 other stock claims, that was finally terminated in the Court of Appeals, the stock claims of the Margolis group were determined sua sponte by the Court of Appeals in accordance with the principles enunciated by that court in that other proceeding. (Fried v. Margolis, 2 Cir., 296 F.2d 670, at 676.) On that basis, of the 54 shares of stock claimed by the Margolis group, 15.287 were ultimately allowed and 38.713 were disallowed.
The creditor claims of Benjamin Margolis and Ida Mae Margolis, referred to above, will be discussed hereinafter.
Rosen's application for an allowance states that he, as attorney for the debtor, spent in excess of 1,300 hours in countering the various claims of the Margolis group. Based on Rosen's application for $150,000 for 6,138 hours in services claimed to have been rendered to the debtor, his requested fee for his activities in respect of the Margolis group approximates $32,000.
Ignoring that the allowance of stock claims to the Margolis group came about as an adjunct to the resolution of other stock claims, and giving Rosen sole credit for reducing the stock ultimately issued to the Margolis group, Rosen asks about $32,000 for increasing the value of stock ultimately issued to all recognized stockholders by approximately $39,000 and reducing the creditors' claims against the debtor by about $42,000 including the obviously unsupportable Margolis $25,000 creditor claim.
(B) Condemnation of real property of the debtor by the Commonwealth of Pennsylvania.
Prior to the filing of the reorganization petition, the Commonwealth of Pennsylvania condemned a portion of the real property owned by the debtor in Nazareth, Pennsylvania, for highway improvement purposes.
The debtor applied for an order appointing an appraiser to ascertain the value of the condemned real property and the court appointed J. M. Brandau, of Easton, Pennsylvania, as such appraiser who reported that the value of said property was $20,000. The Commonwealth offered $3,000 for the property, which was rejected by the debtor's Board of Directors.
On April 21, 1955 the debtor moved before Referee Joyce for judgment against the Commonwealth for $20,000 by way of set-off and counterclaim to the said Commonwealth's claim for taxes allegedly owed by the debtor. On August 22, 1955 the Commonwealth moved to dismiss the set-off and counterclaim for lack of jurisdiction.
Thereafter, the debtor's president, Arnold A. Weinstein, (hereinafter Weinstein) and Rosen had two conferences with representatives of the Commonwealth, following which the offer of the Commonwealth was raised to $8,000, if the set-off and counterclaim of the debtor were withdrawn. On Weinstein's petition that the "best interests of the debtor will be * * * served" by acceptance of the offer, the debtor was granted leave to compromise its claim against the Commonwealth for $8,000.
(C) Settlement of insurance claims of the debtor as a result of two fire losses.
On August 28, 1956 improvements on the debtor's real property were severely damaged by fire. On September 7, 1956 Weinstein, as debtor's president, petitioned this court for leave to retain Young Adjustment Company of Philadelphia, Pennsylvania, to adjust its claims against various insurance companies arising out of said fire, explaining
"that such retention is necessary and desirable for the reason that the loss described is a large one which presents complicated questions which can best be resolved through the agency of a fire insurance adjuster * * *."
Accordingly on September 12, 1956 it was
"ORDERED, that * * * Debtor, be and it hereby is authorized to retain Young Adjustment Company and to pay [it] a sum not to exceed 10 per cent of the moneys collected by [it] for its services and expenses as the fire adjuster herein."
Pursuant to an order filed on November 7, 1956 on recommendation of Weinstein, as debtor's president, the claim was settled for $115,206.78.
On April 20, 1957 the debtor was also authorized to accept an offer of $28,100.15 made by the insurance companies for rent loss claims arising out of the fire.
Young Adjustment Company received fees of approximately $13,000 for its services in negotiating the settlement of the insurance claims of the debtor as a result of the fire of August, 1956.
On May 13, 1962 a portion of the grandstand building owned by the debtor was damaged by fire. On May 24, 1962, Alvin H. Butz, a general contractor, submitted an estimate of the cost to repair the damage at $13,913.19. The total cost to repair the damage was estimated by the debtor at $15,479.30, including electrical work, not covered by Butz's estimate. The said estimate received from Butz dated May 24, 1962 and his supplemental letter dated June 19, 1962 were addressed to "Nazareth Fairgrounds and Farmers Market, Inc. Attention: Mr. Jerry Fried, Mgr."
On May 31, 1962 the debtor, by Weinstein, its president, petitioned for authority to accept an offer of $13,913.19 from the insurance companies and stated that the offer was based upon Butz's estimate and was "* * * fair and reasonable and in the best interests of the debtor" whereupon, on June 6, 1962 at a hearing on the debtor's said petition of May 31, 1962, Rosen stated:
"May I say this to your Honor, that we were able to make a favorable settlement, as I was given to understand." (SM 13491)
At the hearing on June 6, 1962, when the Examiner asked if any brokerage or other fees were payable from the $13,913.19 offer the following colloquy took place:
" MR. WEINSTEIN : I can answer that question. There are no fees payable at all.
MR. FRIED : I would like to correct that, your Honor, if I may.
MR. FRIED : There may be a fee. Mr. Butz submitted his figures and in a letter to us he stated that in the event he gets the repair job then there is no fee; if he doesn't get the repair job then the fee for making up this job as you have it is $300. That's the extent of the expenses." (SM 13493-4)
On July 12, 1962 the debtor was authorized to accept the $13,913.19 offer.
Nothing in the record sustains Rosen's claim for compensation for having "conferred and having helped negotiate the settlement with the insurance company and said loss in conjunction with one Butz and did the necessary legal work to retain the necessary parties, such as an appraiser, fire loss adjuster. * * *"
(D) The proceedings with respect to the allowance and disallowance of stock claims.
Forty-one proofs of stock interest were filed in this proceeding - five by the Margolis group and thirty-six by others. Rosen, as attorney for the debtor, filed objections and counterclaims for subscription prices to every stock claim filed, but the counterclaims were never pressed by the debtor.
Although in 1954, Rosen, as attorney for the debtor, sent a questionnaire to each stock claimant requesting information as to each claimant's acquisition of stock, between September, 1953 and May, 1958 Rosen conducted intermittent examinations of only "8 or 10" of the stock claimants pursuant to § 21a of the Bankruptcy Act, (SM 2162) contenting himself with the answers to the questionnaires as adequate preparation for trial.
By petition dated February 28, 1958, the debtor sought leave to compromise the stock claims on a formula worked out by Rosen and Weinstein. It was denied because it lacked substantial facts as to the basis of each claim which, in the absence of § 21a examinations, only a trial could reveal.
During the trial of the stock claims, the wisdom of the rejection of the earlier proposed compromise was acknowledged by Rosen thus: "at this stage of the game. * * * I might well agree with you in view of developments." (SM 2307)
Rosen attended and participated in the stock claim hearings held before the court on approximately 86 separate days between May 19, 1958 and May 7, 1959. Rosen, as attorney for the debtor, which was bound to act as a trustee under § 188 of the Bankruptcy Act, owed the duty to assist in aiding the court in resolving the complex problems as to the stock ownership in the debtor. Despite this obligation, Rosen objected to every reference to personal conversations had with John Malakoff the person from whom every claimant ultimately traced his claim to shares of the debtor's stock. (SM 547 and 1975)
Although John Malakoff was the only person who was personally familiar with virtually every stock transaction involving the alleged sale of stock to the stock claimants, Rosen, according to his application for an allowance, examined him three times in 1953, shortly after the Chapter X petition was filed. On December 24, 1953, Rosen stated that he intended to continue with the examinations of John Malakoff. (SM 49 of 12/24/53) Between December 24, 1953 and the date of John Malakoff's death in 1955, Malakoff was further examined by Rosen on only three separate dates, according to his said application. Deducting a proportion of the time, according to Rosen's instant application, spent in examining other persons on the days when he examined Malakoff, it appears that the six examinations of Malakoff aggregated about eight hours. This neglect compounded the difficulties encountered at the trial of the stock claims because Malakoff's death in 1955 sealed his lips without his testimony having been obtained.
Despite the conflicting claims to the debtor's stock, Rosen did not communicate with or contact one Helen Bernstein, who had acted as John Malakoff's secretary during the period when Malakoff was "issuing" stock in the debtor, for almost 4 1/2 years after the filing of the Chapter X petition, (SM 1293) during which time she was a resident of New York City and readily available.
Whatever was accomplished ultimately in the determination of the stock claims is attributable in largest measure to the efforts and performance of the Examiner, Weinstein and attorneys who appeared for the claimants.
The major portion of the time spent by Rosen in the reorganization proceeding for which Rosen seeks compensation was spent in connection with the stock claims. Rosen's exaggerated evaluation of his contribution to resolving the stock claims is sharply reduced by extracts culled from the record and appended hereto as Appendix "A".
The ultimate allowance of stock in the debtor was predicated upon the findings of fact which were made upon the Examiner's 236 page report of the evidence adduced during the 86 day trial.
Forty-one persons filed stock claims. The trial resulted in the recognition by the district court of 36 of these. Five were not passed upon. Rosen, for the debtor, appealed only from the allowance of 9 of the 36. The Court of Appeals struck down the district court's allowance of 6 of the 9 and sua sponte passed upon the 5 which were not decided by the district court. In summary, therefore, the effect of Rosen's appeal was to transfer the value of the 6 claims reversed, to the remaining claims allowed.
Rosen's repeated references in his application to the affirmance by the Supreme Court of the Court of Appeals' decision is erroneous. Certiorari having been granted and subsequently vacated as improvidently granted (Wolf v. Weinstein, 372 U.S. 633, 636, 83 S. Ct. 969, 10 L. Ed. 2d 33) is not an affirmance. State of Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 70 S. Ct. 252, 94 L. Ed. 562.
(E) The allowance and disallowance of creditor claims.
Rosen's application for compensation states that his services eliminated or reduced the following creditors' claims:
a) Ida Mae Margolis $ 3,550.00
b) Benjamin Margolis 25,000.00
c) Harry Forman 5,000.00
d) Joseph Sherman 11,000.00
e) Internal Revenue Service 41,465.14
f) Metropolitan Edison Co. 2,400.00
g) Seymour Forman 10,000.00
The claim of Ida Mae Margolis for $3,550.00 was tried by Referee Joyce in conjunction with her claim for 15 shares of the debtor's stock. The issues involved in both claims were identical. By decision dated August 30, 1957 all claims of Ida Mae Margolis were disallowed by Referee Joyce. Whatever services Rosen performed in opposing Ida Mae Margolis' creditor claim were merely incidental to his opposition to her stock claim, part of which was later restored by the Court of Appeals as one of the five claims passed upon by that Court sua sponte.
As above stated, the obviously unsupportable claim of Benjamin Margolis for $25,000 was based on his costs and expenses in connection with the debtor's examinations of Benjamin Margolis pursuant to § 21a of the Bankruptcy Act. On August 10, 1955 the debtor moved for an order striking out or dismissing Margolis' claim for $25,000. On August 17, 1955 a hearing was held on the debtor's motion. On the same day, Referee Joyce endorsed the motion papers as follows:
On August 31, 1955 Referee Joyce made an order, (notice of settlement of which had been waived by Benjamin Margolis' attorney) dismissing and disallowing Margolis' said claim for $25,000.
Rosen asserts that Harry Forman's claim for $5,000 was disallowed as a product of Rosen's opposition. The filed papers, Referee's docket and the district court docket fail to disclose any such claim although it was the subject of some testimony during the trial of Forman's stock claim.
Two claims were filed by Joseph Sherman, one for $10,000 for breach of contract and another for $1,000 on a promissory note. During the trial of these claims Sherman abandoned his $10,000 claim. He succeeded on his $1,000 claim. Rosen, in his instant application, claims sole credit for the result. The record (SM 9254-9471) establishes that the result was achieved mainly by the Examiner with assists by Benjamin Margolis, Robbins and Rosen.
Rosen's application states that the Internal Revenue Service filed a claim against the debtor for $41,465.14, representing income tax on alleged income of the debtor while in possession. The Referee's and the district court's dockets do not reflect the filing of any such claim although it may have been presented to the debtor.
Rosen's application indicates that after consultation with Gilbert Sunshine, who acted as the debtor's accountant, Rosen pointed out in accordance with Sunshine's advice, that the alleged profits of the debtor were illusory since they were subject to the expenses of administration and were subject to deductions resulting from losses in connection with the issuance of its stock and distributions made in regard thereto.
The total of Rosen's services in conveying Sunshine's opinion which brought about the withdrawal of the possible tax liability was possibly one conference (alluded to in his instant application but not listed in the schedules attached thereto), a few telephone calls and two letters. Whatever his services might have been in the premises, they are probably not compensable because they did not arise "in this and all other proceedings and actions" to which Judge Holtzoff limited Rosen's retainer after rejecting a request for Rosen's employment under a general retainer.
Rosen states in his instant application that he filed an objection to the claim of Metropolitan Edison Co. of Pennsylvania for $2,400 and that he compromised the claim for $1,450.
No such claim and no objections thereto appear to have been filed. What does appear from the granting of the debtor's request for leave to compromise a debt incurred prior to the reorganization proceeding is that in July, 1952, Metropolitan Edison Co. of Pennsylvania installed electric poles and appurtenant equipment on the debtor's property at the agreed price of $2,400, which was not paid.
The debtor petitioned this court for authority to compromise and settle the indebtedness owing to Metropolitan Edison Co. for $1,450 on, inter alia, the affidavit of Jerome Fried, general manager of the debtor, sworn to May 28, 1954, that it was his negotiations with representatives of Metropolitan Edison Co. which resulted in the reduction of the said company's claim to $1,450.
Rosen, except for the drawing of legal papers presented to the court, did not in any way negotiate the settlement of Metropolitan Edison Co.'s claim.
Seymour Forman filed a creditor's claim for $5,000 against the debtor, and not $10,000 as stated by Rosen in his application. Since this $5,000 was part of $15,000 which claimant alleged was the consideration for the 15 shares of the debtor's stock for which Seymour Forman also filed a stockholder's claim, it was disposed of in the determination of his stockholder's claim without any additional services rendered by Rosen.
(F) Leases entered into by the debtor.
Rosen's application states that he helped to negotiate and draft 13 leases entered into by the debtor during the course of the reorganization proceeding. Rosen was aided in the preparation, negotiation and drafting of many leases by Weinstein, (SM 10188) although Rosen's application is devoid of any reference to Weinstein's aid. Weinstein, who is a lawyer, was readily available for these and other consultations because he and Rosen shared office space.
By order of November 1, 1956 the court directed that any and all leases for a term of one year or more be submitted to the Examiner for his written consent thereto, prior to execution by the debtor. As is elsewhere indicated herein, the proffered leases were substantially amended and improved by the Examiner, a fact also ignored in Rosen's application.
(G) Plan of reorganization for the debtor.
Rosen's application states that he submitted "on at least three occasions, Plans of Arrangement" and that "as a result of petitioner's services * * * the Plan of Arrangement was confirmed."
No plan of "Arrangement" was submitted, approved or confirmed in the reorganization proceeding of this debtor. The plan of reorganization finally approved and confirmed was primarily a product of the labors of the Examiner.
In addition to Rosen's claim for services rendered under sections (A) through (G), supra, he claims to have rendered services in other areas.
One of the most important matters dealt with in the course of the reorganization proceeding was the proceeding instituted pursuant to § 249 of the Bankruptcy Act. This proceeding, discussed in greater detail elsewhere, was instituted by a stockholder of the debtor represented by Robbins for, inter alia, the recoupment of salaries and disbursements paid to Weinstein and Jerome Fried, general manager of the debtor (hereinafter Fried) who traded in its stock during the course of the reorganization, resulted in a substantial benefit to the debtor's estate.
Rosen, in his application, deals with the § 249 matter only in reciting his services in the Supreme Court.
In Limine, reference should be made to the curious discrepancy between Rosen's application as filed in court and as served on the Examiner, as disclosed in Robbins' brief. Rosen's filed application deals with his services in the Supreme Court only on pages 31 and 32, and at those pages attributes 371 hours at $50 an hour. On the other hand, in recapitulating his time, Rosen, at page 51 of his said filed application in Par. 117, attributes 402 hours for this service.
To further complicate the comprehension of his claim for services in the Supreme Court, Rosen, without altering the recitals of 371 hours set forth as aforesaid at pages 31 and 32 of his filed application, incorporates in the copy of his application served on the Examiner new pages 16 and 17 of Schedule C, never included in the original filed in court, and thereby aggregates the hours spent in the services performed in connection with the appeals to the Supreme Court at 461 1/2 hours. At $50 an hour the substantial difference of 90 1/2 hours is quite apparent. This inexplicable variance is but one of the many factors making Rosen's application difficult to accept.
Returning to the substance of the § 249 litigation, it is undenied that Rosen was aware that Weinstein had acquired stock of the debtor during the course of the reorganization at a time when Weinstein was a fiduciary of the debtor and considered the deal as a "clean transaction." (SM 659)
Despite the aforesaid knowledge of Rosen, he did not undertake to institute any action or make any report of such acquisition on the debtor's behalf.
Indeed, once the § 249 proceeding was instituted, Rosen maintained that the debtor was merely a "stakeholder." (SM 9864) Although he attributed that posture to the debtor to immunize it against costs of the § 249 litigation, he never thereafter sought to have the debtor reimbursed by Weinstein or Fried for the debtor's expenses in that litigation.
Notwithstanding the professed neutral position of the debtor, Rosen supported Weinstein's and Fried's defenses and advocated that § 249 did not apply to them. [Debtor's brief, Supreme Court, p. 63, October term No. 70.]
Section 249 was violated by Weinstein and Fried, [Wolf v. Weinstein, 372 U.S. 633, 83 S. Ct. 969, 10 L. Ed. 2d 33 (1963)] as a result of which the debtor was awarded judgments in the sum of $119,151.54.
One of the other areas in which Rosen claims to have rendered compensable services is attendance at stockholders' meetings. Since no information is supplied to indicate that these services were within the boundaries set by Judge Holtzoff of the permission granted to the debtor to employ Rosen, they are not compensable.
Coupled with his evaluation of services, Rosen seeks reimbursement of expenses of $724.54. Certain of these are unjustified:
a) a charge of January 24, 1961, in the amount of $35 by Athena J. Cook for typing, which the debtor was directed to pay;
b) a charge of August 11, 1961 in the amount of $99.91 by Loder Appeal Press which was held not to be a proper charge against the debtor; and
c) a charge of $340 by Verbatim Service Co. for typing Rosen's instant application for an allowance.
Accordingly, Rosen's assessable disbursements are reduced to $249.63.
In In re Hudson & Manhattan Railroad Co., 339 F.2d 114 (2d Cir. 1964), Chief Judge Lumbard wrote that:
"We wish to emphasize that any attorney who hopes to obtain an allowance from the court should keep accurate and current records of work done and time spent. Lawyers are well aware that, especially where services of the nature here involved are spread over a period of time and ultimate payment is virtually assured, they are valued principally on the basis of the time required. There is no excuse for an established law firm to rely on estimates made on the eve of payment and almost entirely unsupported by daily records or for it to expect a court to do so."
Chief Judge Lumbard reiterated the rule in In the Matter of Wal-Feld Company, Inc., 345 F.2d 676 (2d Cir. 1965), Judge Moore adverted to it in In re General Economics Corp., 360 F.2d 762 (2d Cir. 1966), and Judge Herlands demonstrated its application in In re Seaboard Drug Company, 242 F. Supp. 571 (S.D.N.Y.1965).
Rosen testified that his application for an allowance was prepared from a record maintained by him of services rendered and time spent by him. (SM 14822)
Attention is first addressed to the schedules of compensable time and services claimed by Rosen to have been devoted to the debtor's interests, annexed to his application. These schedules are as follows:
A Appearances in court for examinations, trials
B Preparation and analysis of legal documents
C Memoranda of law
D "In the matter of having my secretary type,
checking and appearance in Clerk's office
of Referee for the purpose of filing the affidavits
for countersignature of checks and getting
the Referee to countersign the checks and in
many instances, having affidavit amended at
the request of the Referee."
E "Appearances in Court for the purpose of
filing and submitting
the documents listed."
In addition, Rosen has attached schedules to his application which purport to list conferences held by him, out-of-town trips, meetings of stockholders and directors, and correspondence prepared and received by him in connection with the reorganization proceeding.
Schedule B states that on January 8, 1954, Rosen spent one hour preparing an affidavit of service by mail of Anna E. Lubbe which was sworn to on the day before, January 7, 1954.
Schedule B states that Rosen spent a total of six and one-half hours on January 26, 27, and 29, 1954 checking "Margolis affidavit in opposition to a proposed lease for Fried and LaGrotte." Said affidavit is eight pages in length exclusive of exhibits which were copies of documents prepared by Rosen.
Schedule B states that Rosen spent one and one-half hours on January 29, 1954 preparing the affidavit of Weinstein, sworn to a few days earlier on January 25, 1954, in support of a proposed lease for Fried and LaGrotte.
Rosen's Schedule B states that on September 21, 1954, he spent one hour "checking" the memoranda endorsed on petitions and notices of motions filed September 9 and 17, 1954. The said petitions and notices of motions each had the following endorsement:
Respectfully submitted to
In Schedule E, Rosen charges one-half hour on September 21, 1954 for the same services as to the motion filed September 17, 1954.
Rosen's Schedule B states that he spent two hours on September 23, 1954 "checking" the memoranda decisions denying the motions filed September 9 and 17, 1954. The memorandum appearing on each petition reads:
Motion denied without prejudice to a renewal thereof after jurisdiction is finally decided.
Schedule B states, "checked memo on petition filing of weekly reports" for one and one-half hours on October 8, 1954. The said memorandum appearing thereon is as follows:
Rosen's Schedule B states that he spent one hour on April 21, 1955 checking a memorandum endorsed on a motion. That memorandum reads:
Motion granted to retain Young Adjustment Company at 10% fee and settle claims against insurance company for $14,500 approximately.
Rosen's Schedule B states that on May 15, 1956 he spent two hours "checking" the answer of Benjamin Margolis to a petition to resettle an order of January 5, 1955. The said petition, according to an affidavit of service made by Rosen's son, was personally served upon Margolis on 9:38 a.m. on May 16, 1956.
On April 7, 1958, Rosen spent twenty-two hours checking various papers and preparing a notice of hearing in connection with the within proceeding, according to Schedule B. In addition, according to Schedule A, he attended a hearing for six hours on the same day.
On January 7, 10 and 12, 1961, Rosen's Schedule B states that he spent a total of eleven and one-half hours "checking" three notices of appeal. These notices together totalled thirty typewritten lines.
Schedule B states that on February 16, 1962, Rosen spent one and one-half hours checking an order entered on February 16, 1962. Thereafter, Schedule B charges two hours spent by Rosen on March 16, 1962 in checking a notice of appeal from that order of February 16, 1962, containing seven typewritten lines.
Rosen's Schedule D is twenty-three pages in length and purports to show that he spent a total of two hundred sixty-one hours (which amounts to $6,525 of the fee sought) in connection with the affidavits submitted to the Referee to procure the Referee's countersignature on checks.
All of the affidavits were substantially the same in form. The form of the affidavit was very simple, according to Rosen [copy of letter of Rosen to Martin Phillip, Esq. dated July 8, 1960 in Referee's file]. Rosen did not draft the affidavits referred to in Schedule D. (SM 14841)
Although Rosen claimed time in explaining the affidavits to the Referee (SM 14842) he includes only once in his application, in Schedule A under the date of June 15, 1964, such a conference with Referee Ryan.
It is impossible to ascertain from Rosen's application and testimony whether he seeks this $6,525 for his services or those of his secretary [see quotation, supra, from title page of Schedule D].
As its title, hereinabove quoted, indicates, Schedule E purports to list appearances by Rosen in court to file and submit papers.
Schedule E states that on May 11, 1954, Rosen delivered to the courthouse for filing, a petition and order to show cause why a subpoena should not be vacated. The said petition was made by and on behalf of Benjamin Margolis, on whom Rosen had caused the subpoena in question to be served.
Rosen's Schedule E charges one and one-half hours on December 17, 1954 for filing an affidavit made by Weinstein with respect to a hearing held on the question of the construction of a new building by the debtor. Rosen's Schedule A charges three hours for his presence at the same hearing. The said affidavit of Weinstein bears the notation that it was filed at the hearing.
A mystifying aspect of Schedule E, the title of which is quoted supra, is how Rosen succeeded in appearing in court for the purpose of filing and submitting documents on the following dates:
January 1, 1954 (New Year's Day)
December 18, 1955 (Sunday)
October 23, 1960 (Sunday)
December 10, 1961 (Sunday)
July 1, 1962 (twice) (Sunday)
January 19, 1964 (Sunday)
January 26, 1964 (Sunday)
In my opinion, the trips to and from the courthouse listed in Schedule E, consuming 67 1/2 hours, to file papers, could as well have been made by a $50 a week messenger as by a $25 an hour attorney.
Enough has been shown to justify a belief that the accuracy of the schedules and application which they are offered to support, is doubtful. Since they are predicated, according to Rosen's testimony (SM 14822), on his records, the accuracy of his records must be held equally suspect.
Rosen has failed to establish that quantitatively or qualitatively his services on the debtor's behalf were of the fair and reasonable value placed by him at a quarter of a million dollars or of the $150,000 which he requests.
However, having presided over this reorganization virtually since its inception, I appreciate that Rosen did render a measure of services beneficial to the debtor. I agree with the objections filed by Weinstein to Rosen's request for an allowance of $150,000 to the extent that he states that "services * * * may actually have been rendered" by Rosen but that $150,000 as an allowance of counsel fees is disproportionate to the size of the estate involved." These services I evaluate at a fair and reasonable value of $25,000 including his disbursements. I would allow Rosen that amount were I not constrained to award him nothing (except his disbursements of $249.63) for his failure to comply with the mandate of In re Hudson & Manhattan Railroad Co., supra.
Rosen did not maintain accurate and current records of work done and time spent. Appended hereto as Appendix "B" are commentary and extracts from the record upon which I conclude that the only records that Rosen might have kept were those of the fragmentary nature of the typewritten cards which he introduced in evidence in March, 1959 at the hearing on his claim of $3,750 as a creditor for pre-reorganization services rendered to the debtor, resulting in an ultimate allowance of $1,200.
Even had these been introduced they would have been insufficient - hence the story of the stolen briefcase and docket.
Accordingly the order to be entered hereon will allow Rosen disbursements of $249.63.
Weinstein, a stockholder of the debtor, filed objections to the applications of Robbins and the Examiner for compensation and reimbursement of expenses incurred herein. The gravamen of the objections common to those applications is:
"That from and after September 1, 1956 and after the appointment of * * * Charles Seligson, as Examiner, and during his tenure of office and during the course of this Chapter X proceeding, Robbins was, on terms not known to this respondent, employed by, or participated in ventures with, or was engaged by, * * ...