Munro v. Tousey — 36 N.Y. St. Rep. 522

Majority

p. 522

George Munro, Resp’t, v. Frank Tousey, App’lt.

(Supreme Court, General Term, First Department,

Filed January 13, 1891.

Headnote

Costs—Unnecessary action.

Where two actions for injunction are brought when only one was necessary, and the same evidence to some extent are taken in both, costs should be awarded to plaintiff only in one action.

Appeal from a judgment of the special term.

W. H. Townley, for app’lt; Roger Foster, for resp’t.

The disposition of this appeal is controlled by the judgment pronounced in action No. 1 between the parties hereto and herewith decided. The questions involved are kindred and the evidence as well, the only suggestion requiring consideration being whether the defendant should be required to pay the costs

p. 523

which were awarded against him. There is no doubt that the publications complained of here could have been embraced in action Ho. 1 between the parties and already alluded to. Both actions are on the equity .side and the costs, therefore, discretionary. There appears not upon the record any reason why the two causes should not have been joined in the other action, and for this reason the costs should not have been awarded to the plaintiff. At law each publication was a cause of action, doubtless, but if prosecuted -even in that mode the separate actions might, nevertheless, be consolidated, but this method of procedure in equity is not indispensable as to the question of costs, in regard to which the plaintiff takes the peril of facts and circumstances affecting it.

It appears, and it has some bearing on the subject, that some evidence relating to this action was taken in the other, and thus, to some extent at least, they proceeded pari passu together. A multiplicity of actions is not favored in equity, and if indulged in that circumstance must have an important influence upon the allowance, or disallowance, of costs as a matter of discretion. This action being one which was not required to redress the plaintiff’s wrongs, and, therefore, unnecessary, the plaintiff should have been compelled to pay his own costs. It was, under the circumstances, sufficient punishment to him to oblige the defendant to pay his own costs in addition to the costs in the other action. The judgment should, therefore, be modified by reversing it as to costs awarded against the defendant, and affirmed as to the balance, without costs to either party.

Ordered accordingly.

Van Brunt, P. J.“ and Daniels, J., concur.