Hyperlawhypertext legal database McIntyre v. Wynne 16 N.Y.S. 540

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McIntyre v. Wynne

16 N.Y.S. 540 Court N.Y.C.P. Decision date 1891-07-02 English

Delivered by Bookstaver, J.

Contents

Majority

p. 540
McIntyre v. Wynne et al.
(Common Pleas of New York City and County, Special Term.
July 2, 1891.)

Headnote

Costs—Separate Taxation against Dependants.
In an action under the civil damage law against a liquor dealer and his landlord, defendants appeared by separate attorneys and answered separately. The jury found against defendants in different amounts, being instructed by the trial judge that they might do so. Held, that plaintiff was entitled to have a bill of costs taxed against each defendant separately. Comstock v. PLalleck, 4 Sandf. 671 , followed. Buell v. Qcvy, 13 How. Pr. 31 , disapproved.
Action under the civil damage law by Annie M. McIntyre against James Wynne, a liquor dealer, and Caroline Wallach, the landlord of defendant Wynne. The jury were instructed that if they found for plaintiff they might assess the damages against defendants in different amounts, and they found
p. 541
against defendant Wynne in the sum of $1,000, and against defendant Wal-Iach in the sum of $250. Plaintiff moves that the clerk be directed to tax a separate bill of costs against each defendant.
Carter, Hughes & Kellogg, for plaintiff. J. F. McIntyre, for defendant Wynne. Max Moses, for defendant Wallach.

On the trial of this action the learned judge charged the jury that if they found in favor of the plaintiff they might find against the two defendants indifferent sums, and the jury, acting on such instructions, did find in favor of the plaintiff and against the defendants in different amounts. This instruction necessarily implies that there may be two judgments in this action, and I feel bound to follow the decision of the trial judge in this respect, especially as the defendants appeared by separate attorneys, and interposed separate defenses. It therefore seems to follow that there should be two bills of costs taxed, in accordance with Comstock v. Halleck, 4 Sandf. 671 , and that the decision in Buell v. Gay, 13 How. Pr. 31 , cannot be followed in this action.

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