Majority
p. 265The Albany and West Stockbridge Rail-Road Company vs. Cady and Cady. moved that the plaintiffs’ attorney make up a record and insert therein judgments in favor of each of the defendants for his costs. He insisted that each defendant was entitled to a full bill of costs. If the plaintiffs’ attorney did not make up the record, he then asked that the defendants’ attorney be at liberty to make it up. He cited 2 R. S. 615, 616, §16,18,23; Canfield v. Gaylord, ( 12 Wend. 236 ;) Griswold v. Sedgwick, (3 id. 326 ;) Day v. Hanks, (3 T. R. 654.)
Headnote
In an action against two defendants for a tort, if a verdict is rendered against one of them which carries costs, and the other is acquitted, he is entitled to a full bill of costs against the plaintiff. Per Bronson, J.Where the defendants appear by the same attorney, who performs the same services for both, and both are acquitted, they cannot tax separate bills of costs, but are entitled only to one bill and one judgment. Per Bronson, J.
This rule applies also where only one of the defendants is acquitted, and the recovery against the other is so small that both are entitled to costs.
In such case, however, if the defendants have pleaded separately, the attorney is entitled to be allowed for two pleas.
This was an action of debt brought against the defendants Elisha and Jonathan Cady, pursuant to Stat. 1834, p. 544, § 12, for a wilful injury to the plaintiffs’ rail-road. The defendants appeared by the same attorney, and pleaded separately nil debet. On the trial, the jury found a verdict against the defendant Elisha, for four dollars, and acquitted the defendant Jonathan. The plaintiffs made a case and moved for a new trial against both defendants; but the motion was denied.
K. Miller, for .the defendants,
H. Hogeboom, contra.
The plaintiffs are entitled to judgment for treble damages against the defendant Elisha Cady, amounting to twelve dollars. (Stat. 1834, p. 544, § 12.) And the defendants are entitled to judgment against the plaintiffs for
p. 266
costs. The treble damages against Elisha not being enough to give the plaintiffs costs against him, (2 M. iS. 616, § 23,) he is entitled to costs against them. (Id. 615, § 16.) Jonathan, who was acquitted, is of course entitled to costs. (Id. § 18.) So far as costs are concerned, the case is substantially the same as though both defendants had been acquitted by the jury. They are not entitled to tax several bills, for the reason that both recover costs, and there have been no separate services, except for the pleas. Where the plaintiff has a verdict vihich carries costs against one defendant, and the other is acquitted, the latter is entitled to a full bill of costs against the plaintiff; and this is so although the services were performed alike for both defendants. This results from the fact that the statute gives costs to the defendant acquitted, and prescribes no rule of apportionment. (Canfield v. Gaylord, 12 Wend. 236 .) But where there was but one set of services, and both defendants are acquitted, they cannot tax separate bills, and so recover double costs. And the rule is the same, I think, where, although there is a verdict against one defendant, the case is such that both recover costs. The motion for two judgments[1] and separate bills of costs for each defendant must therefore be denied. They can only tax one bill. But they may insert in that a charge for two pleas, because the action was for a tort, and they pleaded separately.
The attorney for the plaintiffs must make up the record in pursuance of these suggestions within ten days after the costs shall be taxed; and in default of his doing so, the attorney for the defendants may make up the record.
Ordered accordingly.[2]
(a) (a) See Webb v. Bulger & Bulger, ( 4 Hill, 588 .)
(b) (b) See Tenbroeck and wife v. Paige and Finch, (post, p. 267.)
Cases cited
- Canfield v. Gaylord 12 Wend. 236 p. 265, p. 266