Pagano v. Giuliani

Seabl, J. This motion is made to strike from defendants’ bills of costs in this action the following items: 1. One entire bill of costs of the defendants on "the ground that the transaction arose from one subject matter and that defendants appeared by the same attorney. ******* [Portions of the opinion have been omitted at the places indicated by asterisks on account of their subordinate importance.] As to striking out the entire bill of costs of defendant Josephine Giuliani in the sum of fifty-seven dollars and twenty-five cents, it appears that the action was brought for assault and battery, the defendant Antonio Giuliani filing a general denial and a counterclaim for damages, likewise on the ground of assault and battery. After the case was at issue as to defendant Antonio Giuliani, a summons and complaint was served upon his wife, Josephine Giuliani. She answered by general denial. The cause appears to have been tried on the 27th and 28th days of June, 1943, and resulted in a jury verdict of “ No cause for action ” as to plaintiff on his action against Antonio Giuliani, “ No eause for action ” on the counterclaim of the defendant Antonio Giuliani, and a verdict of “ No cause for action ” in plaintiff’s claim against the defendant Josephine Giuliani. ******* However, in the instant case one attorney appeared for both defendants; the plaintiff’s alleged cause of action grew out of [376] one transaction and the defendants were united in interest According to the weight of authority there can be but one bill of costs. A long line of authorities (Tracy v. Stone, 5 How. Pr. 104 [1850] ; Atkins v. Lefever, 5 Abb. Pr. N. S. 221 [1868]; Braden v. Kakhaiser, 3 Sandf. 760) support this contention. Ingeman v. Snare & Triest Co. (158 App. Div. 915) holds to the contrary, in language to the effect that “ The fact that both defendants appeared by the same attorney is not.at all controlling, as both defendants would be liable to the attorney for the reasonable value of his services in defending the action.” In that case, without examining the record, it would appear that the defendants were not united in interest. This court must follow the practice usually adopted and allow but one bill of costs. ***«=**«= An order may be made in accordance with this decision, with ten dollars costs of this motion.