p. 115N. Y. Common Pleas; Special Term,Headnote
Costs.—Several Actions for same Cause.—Effect of One Recovery.The provision of section 3231 of the Code of Civil Procedure for the recovery of but one bill of costs where several actions are brought for the same cause, applies to actions for wrongs, and costs beyond disbursements cannot be recovered in an action against a sheriff for a trespass, where there has been a recovery and satisfaction in an action against the indemnitor.
Motion by defendant, sheriff of the county of New York, for leave to interpose a supplemental answer, setting up satisfaction of the trespass by the indemnitor in an action commenced by this plaintiff against him. in the marine court.
Before the Code of Civil Procedure, if plaintiff received satisfaction for the trespass in an action against one party liable for it, he could collect , costs and disbursements of any action commenced by him’against any other party liable for the same cause of action. But section 3231 seems to embrace actions for wrongs as well as certain actions on contract in the provision that “where two or more actions are brought in a case specified in section 454 of this act, or otherwise, for the same cause of action, against persons who might have been joined in one action, costs other than
p. 116disbursements, cannot be recovered upon the final judgment by the plaintiff in more than one action, which shall be at his election.” Section 454 permits the joining in one action of the parties severally liable upon the same written instrument, including the parties to a bill of exchange or a promissory note. The expression in section 3231, “or otherwise for the same cause of action,” cannot, I think, be construed to mean like causes of action or actions similar to those specified in section 454; the language clearly meaning, I think, that where in a case specified in section 454, or in any case, two or more actions are brought for the same cause of action, costs other than disbursements cannot be recovered.
The Revised Statutes contained a provision (2 R. S. [Edm. ed.] 638, limiting the collection to disbursements only, where several suits were brought on one bond, recognizance, promissory note, bill of exchange, or other instrument.
The Code is broader than the statute, as it includes actions upon “ any written instrument,” as well as bills, notes and similar obligations (section 454), and the language of section 3231, “or otherwise (than section 454) for the same cause of action,” is an evident further extension of the law to embrace all actions.
The supplemental answer may be Set up, therefore, on payment of disbursements only, as that is all plaintiff could collect.