Metropolitan Elevated Railway Co. v. Duggin — 11 N.Y.S. 819

Majority

p. 819

Metropolitan El. Ry. Co. v. Duggin et al.

(Supreme Court, General Term, First Department.

October 24, 1890.)

Headnote

Costs—On Appeal—Partial Affirmance of Judgment.

Where the court of appeals affirms a judgment of the general term as to two of the defendants, but reverses it as to all the others, the two defendants as to wliotn the judgment was affirmed cannot complain of a direction that it be “without costs” as to them, as Code Civil Froc. N. Y. § 3283, subd. 2, places the costs in the discretion of the court where a judgment appealed from is affirmed in part and reversed in part.

Appeal from special term, Yew York county.

Action by the Metropolitan Elevated Railway Company against Charles Duggin, John D. Slaybaek, and five others, for a fraudulent issue of notes of the plaintiff corporation by defendants while officers of said corporation. Defendants demurred to the complaint, and the special term rendered judgment in their favor. From that judgment plaintiff appealed to the general term, which affirmed the judgment of the special term. From this judgment of affirmance, plaintiff again appealed to the court of appeals, which affirmed the judgment as to defendants Duggin and Slaybaek, without costs, but reversed it as to all the other-defendants. 24 Y. E. Bep. 381. Defendants Duggin

p. 820

and Slayback then served their bill of costs on plaintiff, but the clerk refused to tax them because of the action of the court of appeals in affirming the judgment as to them without costs. Defendants Duggin and Slayback then moved the special term that the clerk be compelled t<, tax the costs in their favor. From an order denying their motion, they appeal. Code Civil Proc. N. Y. § 3238, subd. 2, provides: “Where the final judgment appealed from is affirmed in part and reversed in part, costs may be awarded * * * in the-discretion of the court. ”

For an appeal by defendants Duggin and Slayback from an order directing satisfaction of judgment, see ante, 353.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

Geo. W. Weiffenbach, for appellants. Davies & Rapallo, for respondent.

These two defendants had judgment in their favor in the-court of appeals affirming a judgment of the general term, and the judgment as to other defendants was reversed, and the demurrer overruled. In thisaffirmance it was directed to be without costs. But these two defendants-claim their costs notwithstanding this direction, for the reason that the action was to enforce what is known as “a legal liability;” but the judgment from which the appeal was taken was affirmed only in part. It previously did include other defendants, and that part only was affirmed which included these two defendants, and, on a partial affirmance by subdivision 2, § 3238; the costs have been subjected to the discretion of the court. The language of therein ittance shows that this view was acted upon in making its decision by the court of appeals, and that it exercised this discretion. The case is very clearly against these defendants, and the order should be affirmed, with $10 costs and - the disbursements. All concur.