
    Adolph Folkman, appellant, v. Charles R. Myers et al., respondents.
    [Decided September 30th, 1921.]
    On appeal from a decree of the court of chancery advised hy Vice-Chancellor Learning, who filed the following opinion:
    “I am convinced that in the circumstances here present it would not he in harmony with the recognized rules to allow costs to be taxed by either party against the other. While tire statute makes costs in the circumstances here existing discretionary, that discretion appears to be almost, if not quite, uni formally exercised by a denial of costs when each party has succeeded in part in substantial issues. And tire denial of taxed costs necessarily includes the denial of any allowance as counsel fee. Evócese of Treiúon v. Tolnum (New Jersey Chancery), 7'0 Atl. Rep. SSI; S. C., '7If N. J. Eq. 70$. See, also, Farmer v. Ward, 15 N. J. Eq. 33, 38; Fielder v. Beehman (Neta 'Jersey Chancery), 5J Atl. Rep. 156.
    
    ‘T am unable to conclude that this case can be properly distinguished in principle on the question of costs from the many cases in which costs are denied. Complainant was fully justified in including in his bill to quiet title all the territory which was included, and defendant was equally privileged to defend as to all the territory so covered; but complainant was no more obliged to include the territory which defendant successfully defended than defendant was obliged to disclaim the territory which-he did not successfully defend, since both unsuccessful claims were, in nry judgment, substantial issues and made in good faith. To award complainant costs upon the theory that he more nearly succeeded a? to the territory which defendant successfully defended than did defendant as to the territory which he unsuccessfully defended would be obviously impracticable and wholly improper.
    
      “I have this clay and under this date advised the decree as prepared by complainant after eliminating the clause relating to costs and counsel fee and substituting therefor tire following clause: ‘No costs to he taxed by either party against the other/ ”
    
      Mr. Clarence L. Cole, for the appellant.
    
      Messrs. Bourgeois & Coulomb, for the respondents.
   Per Curiam.

'The decree appealed from will he affirmed, for the reasons stated in the opinion filed in the court below by ’Vice-Chancellor Learning.

For affirmance — Ti-ie Ci-iiee-Justioe, Swayze, Trenciiakd, Parker, Bergen, Minturn, Kaliscii, Black, Katzenbaci-i, Hgppeni-ieimer, Williams, Gardner, Van Buskirk — 13.

For reversal — None.  