Anonymous — 6 Hill & Den. 268

Majority

p. 268

Anonymous.

Headnote

Tn an action against three for a tort, the declaration contained two counts, to which respectively the defendants each pleaded seven pleas, and at the trial the plaintiff was nonsuited. Held, that the defendants’ attorney was entitled to charge in his bill of costs for six pleas, i. e. two for each defendant.

In general, where a party moving for re-taxation claims costs of the motion in his notice, he will be compelled to pay costs, though a re-taxation be ordered. .

Re-taxation of costs. This was an action of trespass brought against three defendants, and the plaintiff was nonsuited on the

p. 269

trial. There were two counts in the declaration. The defendants appeared by the same attorney, but pleaded separately, and each defendant pleaded seven pleas, some to one count and some to the other; and all the pleas, twenty-one in number, were allowed by the taxing officer.

E. A. Doolittle, for the plaintiff,

now moved for a re-taxation, insisting that only one plea was taxable. (Stat. 1840, p. 328.)

S. J. Cowen, contra.

Perhaps the taxing officer had no right to allow for more than six pleas in all. But the plaintiff has given notice that he will ask costs against us, and therefore, whether the officer was right or wrong, we are entitled to the costs of opposing the motion.

In actions for torts it is sometimes very proper for the defendants to plead separately, although they appear by the same attorney; and there are some defences which cannot be pleaded to the whole declaration, but only to a single count. Under the act of 1840 there can be no allowance for more than one plea or answer to the same previous pleading. But that does not touch the case of one plea to one count, and another plea to another count. Each of these defendants might charge for two pleas, making six in all.^[1] The remaining fifteen were improperly allowed, and must be struck out of the bill. But the plaintiff must pay the costs of opposing the motion, because he improperly asked costs in his notice, and would have taken a rule for costs of course if the defendants had not appeared to oppose it.^[2]

Ordered accordingly.

(a) (a) See The Albany and West Stockbridge Rail-Road Company v. Cady and Cady, (ante, p. 265;) Tenbroeck and wife v. Paige and Finch, (ante, p. 267.)

(b) (b) The same doctrine is applicable, it seems, to motions to change venue. (See 4 Hill, 70 ,note.)