Under the general rule in New York, attorneys' fees are
incidents of litigation and a prevailing party may not collect
them from the losing party unless such an award is authorized
by agreement between the parties, statute or court rule.
See In re A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1,
503 N.E.2d 681, 511 N.Y.S.2d 216 (1986); Mighty Midgets v.
Centennial Ins. Co., 47 N.Y.2d 12, 389 N.E.2d 1080, 416
N YS.2d 559 (1979). Pursuant to the Agreement in this case,
the Marx defendants are required to indemnify plaintiff for
having to "institute or defend any action or proceedings and to
take any other steps proper to protect the right, title and
interest of the [plaintiff]" in the composition entitled
"Cecilia." The issue before the Court is whether that language
should be construed to refer only to attorneys' fees incurred
by plaintiff in actions involving third parties and not to
those incurred in litigation between the parties to the
The New York Court of Appeals was confronted with the
identical issue in the case of Hooper Assoc., Ltd. v. AGS
Computers, Inc., 74 N.Y.2d 487, 548 N.E.2d 903, 549 N.Y.S.2d
365 (1989). The contract in Hooper obligated the defendant to
"indemnify and hold harmless [plaintiff] . . . from any and all
claims, damages, liabilities, costs and expenses, including
reasonable counsel fees" arising out of breach of warranty
claims, the performance of services, and infringement of
patents, copyrights or trademarks. Hooper, 74 N.Y.2d at 492,
548 N.E.2d at 905, 549 N.Y.S.2d at 367. The Hooper court
followed the well-established rule that parties are responsible
for their own attorneys' fees and concluded that courts "should
not infer a party's intention to waive the benefit of the rule
unless the intention to do so is unmistakably clear from the
language of the promise." Id. Since the language in the
contract in Hooper did not clearly contemplate indemnification
for suits between the parties, but rather contemplated
reimbursement when the indemnitee is required to pay damages on
a third-party claim, the court declined to require
indemnification for counsel fees in that case. Id.
The holding in Hooper requires a similar result here. The
Agreement at issue requires indemnification of plaintiff when
plaintiff must take steps to protect its right, title and
interest in the composition and allows plaintiff to "dispose of
any matter, claim, action or proceeding." This language, as in
Hooper, is typical of the type which contemplates
indemnification for third-party claims.
Plaintiff argues that the language in the Agreement which
refers to breach of covenants, warranties or representations in
the contract can only refer to claims between the parties, and
thus supports the inference that the Agreement contemplated the
reimbursement of attorneys' fees in litigation between the
parties to the Agreement. The Court does not agree. Indeed, the
language in the Hooper contract also provided for
indemnification for "any breach by [defendant] of any express
or implied warranty hereunder and any express representation or
provision hereof." Hooper, 74 N.Y.2d at 490 n. 1, 548 N.E.2d at
904 n. 1, 549 N.Y.S.2d at 366 n. 1. Nevertheless, the court
concluded that none of these subjects are "exclusively or
unequivocally referable to claims between the parties
or support an inference that defendant promised to indemnify
plaintiff for counsel fees in an action on the contract."
Id. at 492, 548 N.E.2d at 905, 549 N.Y.S.2d at 367.
It follows that where, as here, the parties' intentions to
provide indemnification for claims between the parties is not
"unmistakably clear" from the language of the promise, this
Court cannot infer an intent to waive the benefit of the rule
that parties are responsible for their own attorneys' fees.
Id. See also Tokyo Tanker Co. Ltd. v. Etra Shipping Corp.,
142 A.D.2d 377, 536 N.Y.S.2d 75 (1st Dep't 1989).
Accordingly, the Marx defendants' motion for partial summary
judgment against plaintiff's indemnity claim is granted.
It is SO ORDERED.