Crofts v. Rockefeller

Parker, Justice. Under the late practice, it was well settled that where the attorneys who appeared for different defendants, were partners, they could tax on recovery against the opposite party, but one bill of costs. With reference to costs, a firm consisting of two or more attorneys, was regarded as one attorney. It is claimed by the defendants’ counsel that the rule ought to be otherwise now, in as much as costs are declared to belong to the party (Code, § 303). But costs always belonged to the successful, party, and not to his attorney; though the bill of costs recovered may not be now, as it was formerly, the measure of compensation between the party and his attorney. Iff Tracy vs. Stone (5 Row. Pr. R. 104), it was decided that where two defendants defend by the same attorney and answer separately, and verdict and judgment are given in their favor, but one bill of costs could be allowed. There is no difference between defending by the same attorney and defending by different attorneys who are partners. In Collomb vs. Caldwell (5 How. Pr. R. 336), relied on by the defendants’ counsel, the defendants defended separately, and separate bills of costs were allowed. I have no doubt that was a case where the attorneys defending were not partners, though nothing is said as to that fact by the [11] reporter. It will not be denied but separate bills of costs maybe recovered where separate attorneys, not connected in business, are employed. Such was the late practice (Ten Broeck vs. Paige, 6 Hill, 267). There is nothing in the Code that requires a change of the practice as laid down in the case last cited. Nor is there any reason why successful defendants should recover, where they employ two attorneys in partnership, more costs than where they employ a single attorney to defend. The services rendered are the same in both cases, and no increased compensation in the former case is called for by way of “ indemnity;” The motion must be granted withouticosts of motion to either party.