Royce v. Jones

Hardin, J.: Manifestly this is an action at law where the rights of the defendants to costs are governed by the statute. The Code, section 304, provides for cases where a plaintiff is entitled to recover costs; and then follows section 305, saying, viz.: “ Costs shall be allowed, of course, to the defendant in the actions mentioned in the last section, unless the plaintiff be entitled to costs therein.” This section, prior to 1851, as construed in Daniels v. Lyon (5 Seld., 549), gave defendants who succeeded costs. That case was decided .in 1854, after the amendment of 1851, but the question arose prior to the amendment, and so it remains as an authoritative interpretation of the statute. When that question arose, section 306 applied solely to equity actions, as stated by Sapallo, J., in Allen v. Wheeler (56 N. Y., 50). It was held in the case last cited, that where the plaintiff recovers against some of the defendants and fails against others, the costs of the latter must be awarded by the court if recovered. Such was the purpose of the amendment of 1851; but where the plaintiff fails as to all of the defendants, they are entitled, where they were not united in interest and appeared by separate attorneys, to separate bills of costs. This question was decided by this court in Milligan, Administrator, v. Robinson and Roof, in January, 1880, and it has been passed upon by the third department in Williams v. Cassady et al., decided September, 1880, and reported in volume ten of the New York Weekly Digest, page 494; S. C., 22 Hun, 180. If the severance is in bad faith, and to increase costs, [454] a different rule prevails. (Lindslay v. Deafendorf, 48 How., 90; New York & N. H. R. R. Co. v. Schuyler, 29 id., 89.) In this case the defendants appear to have answered in good faith by two sets of attorneys, and we think it a case where the statute authorizes the allowance of two bills of costs without any order. We must affirm the order with ten dollars costs and disbursements. Talcott, P. J., and Rumsey, J., concurred. Order appealed from affirmed, with ten dollars costs and disbursements.