Daniels v. . Lyon

Section 304 of the Code prescribes in what class of actions, which are those heretofore known as common law actions, the plaintiff upon a recovery shall be entitled as of course to costs against the defendant. Section *Page 550 305 gives costs to the defendant in these actions unless the plaintiff be entitled to costs therein. These two sections dispose of the right of the parties to costs in the actions enumerated. The provisions of § 306 are not applicable to the class of actions embraced within §§ 304 and 305, but apply exclusively to actions of an equitable nature, such as would have been the subjects of suits in equity when the distinction between actions of law and suits in equity was recognized, and to appeals in certain cases. In the actions enumerated in §§ 304, 5, the design was to give the indemnity provided by the act to the plaintiff against all the defendants as to whom he should succeed, and to each defendant who should be unjustly brought into court and compelled to defend himself against an unfounded claim. Section 305 gives costs to the defendant, that is, to each defendant, unless the plaintiff be entitled to costs therein, that is, in that particular action, as against that defendant. For the purpose of determining the right of the parties to costs, the action, being one of the class enumerated in § 304, must be considered as a several action against those defendants who shall be acquitted or succeed therein. Although the legislature has not in language adopted the provisions of the Revised Statutes upon the subject, I see no evidence of an intent to change the rule. There is no good reason why the defendant in a case like this should not be entitled to indemnity for the false claim made against him; and as the statute regulating costs will upon a reasonable interpretation give it to him, I think we ought not to be astute to discover a different reading of the act. The question was properly disposed of by the supreme court. (Comstock v. Bayard, 2 Sandf. S.C.R., 705; Stone v.Duffy, 3 id., 761.)