Moosbrugger v. Kaufman

Hardin, P. J.: It is contended by the learned counsel for the respondents’ that the defendant in each action is entitled to tax a bill of costs against the plaintiff, and in support of that contention he calls attention to section 3234 of the Code of Civil Procedure.. That section provides that “ In an action specified in section three thousand two hundred and twenty-eight of this act, wherein the complaint sets forth separately two or more causes of action, upon which issues of fact are joined, if the plaintiff recovers upon one or more of the issues, and the defendant upon the other or others, each party is entitled to costs against the adverse party. * * * ” The complaint in this action set forth nine causes of action, which apparently are such as aré enumerated in subdivision 4 of section 3228 of the. Code. However,' upon the trial evidence was given by the plaintiff as to only three of these, and as to one of the three a defense had been set up to the effect that as to that cause of action the plaintiff’s assignor, one Sebring, was a stockholder of the corporation of which, in their capacity as stockholders, the plaintiff seeks to hold the defendants liable. That claim was for services rendered by Sebring, an attorney, and the referee finds: “ That at the time the indebtedness of the said Company to said Sebring for said services was contracted and incurred, the said Sebring was a stockholder in said Company owning two shares of its capital stock.” It is also found that he assigned his claim to the plaintiff. As matter of law the referee held, viz,: “ That the plaintiff’s assignor of the claim for services rendered for said Company by said Sebring being a stockholder of said Company [383] as herein found, is a bar to recovery of said claim in this action against a .co-stoclcholder of the assignor of plaintiff of said claim.” And it is insisted in behalf of the defendants that there was a recovery within the letter and spirit of the section of the Oode to which reference has just been made. It is true that the plaintiff’s right to recover for the Sebring claim was defeated. That defeat, however, falls short of a recovery by the defendants upon that cause of action. In Burns v. D., L. & W. R. R. Co. (135 N. Y. 268) the section of the Oode relied upon was construed. In that case the complaint set forth separately three distinct causes of action which were put in issue, and on the trial the plaintiff was nonsuited as to two of them, but had a verdict as to the other, and it was held that the defendant was not entitled to costs, and in the course of the opinion delivered it was said: “ In such cases, if the defendant intends to claim costs he should ask for an affirmative verdict or finding in his favor that will have the effect of disposing of the cause of action as to which the plaintiff has failed. * * * If the Legislature intended to allow a defendant who succeeds in defeating a separate cause of action, stated in the plaintiff’s complaint, to recover costs it would have used some other word to designate the form of the judgment in. his favor and upon which the right depended. It is only when' he recovers upon one or more of the separate causes of action that costs follow, and in the absence of an actual verdict, finding or judgment in his favor this condition is not satisfied. Hence the order appealed-from was right in so far as it denied costs to the defendant.” (See, also, McCarthy v. Innis, 15 N. Y. Supp. 855; S. C., 61 Hun, 354; Cooper v. Jolly, 30 id. 224; S. C. affd., 96 N. Y. 667; Dougherty v. Metropolitan Life Ins. Co., 3 App. Div. 317.) The foregoing views lead to a modification of the orders. Orders modified and the clerk directed to tax one bill of costs and taxable disbursements in favor of the plaintiff and to tax the referee’s fees, fifteen dollars, in fourteen ' actions, and the taxable disbursements pertaining to each action, not taxing the same item, except referee’s fees, in more 'than one action, and the order as so modified affirmed, without costs. Adams and Ward, JJ., concurred; Follett and Green, JJ., dissented.