Ingeman v. Snare & Triest Co. — 143 N.Y.S. 840

Majority

p. 840

INGEMAN v. SNARE & TRIEST CO. et al.

(Supreme Court, Appellate Division, First Department.

October 31, 1913.)

Headnote

Costs (§ 91*)—Right to Costs.

A defendant, sued for a cause of action which the plaintiff did not sustain upon the trial, is entitled to costs, even though represented by the same attorney as the other defendant, who was also given costs.

[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 356-368; Dec. Dig. § 91.^[1] ]

Appeal from Special Term, New York County.

Action by Martin Ingeman against the Snare & Triest Company and the Steel & Masonry Contracting Company. From an order denying a motion to set aside taxation of costs in favor of plaintiff and against

p. 841

one defendant, and to direct taxation of costs in favor of one of the defendants against plaintiff, defendants appeal. Order reversed.

Argued before INGRAHAM, P. J., and CLARKE, SCOTT, BOWLING, and HOTCHKISS, JJ.

Hector M. Hitchings, of New York City, for appellants.

Ralph Gillette, of New York City, for respondent.

That the plaintiff was not entitled to costs against the Steel & Masonry Contracting Company was settled by this court in Moraff v. Kohn, 157 App. Div. 648 , 142 N. Y. Supp. 775 . As to the defendant Snare & Triest Company, this defendant was sued for a cause of action which the plaintiff did not sustain upon the trial. It had to appear and answer the complaint, and, having succeeded upon the trial, we think -it is entitled to costs against the plaintiff. The fact that both defendants appeared by the same attorney is not at all controlling, as both defendants would be liable to the attorney for the reasonable value of his services in defending the action.

The order appealed from is therefore reversed, with $10 costs and disbursements, and the motion for costs against the plaintiff in favor of the Snare & Triest Company and to strike out costs in favor of the plaintiff against the Steel & Masonry Contracting Company granted.