Waite v. F. J. Kaldenberg Co. — 52 N.Y. St. Rep. 595

Majority

p. 595

Charles O. Waite, Resp't, v. The F. J. Kaldenberg Co., App'lt.

(Supreme Court, General Term, First Department,

Filed April 14, 1893.)

Headnote

Severance—Costs—Code Civ. Pro., § 511.

Where an action is severed under § 511 of the Code, the plaintiff on entering judgment for the part admitted is not entitled to costs unless he elect not to continue the action as to the remaining part of the claim.

Appeal from an order denying defendant’s motion to modify the judgment entered upon an order of severance, by striking off the costs, which had been allowed by the clerk upon taxation.

In an action for a sum alleged to be due plaintiff as agent for the sale of defendant’s goods, the answer admitted an indebtedness for a lesser sum. An order of severance was granted, with leave to plaintiff to continue the action as to the remainder of his claim, which he elected to do. On entry of judgment for the amount admitted to be due, the clerk taxed costs in favor of plaintiff.

F. A. Thomson (James J. Allen, of counsel), for app’lt; Douglass & Minton (John B. A. Mullaly, of counsel), for resp’t.

Section 511 of the Code, under the authority of which this judgment was entered, gives to the moving party the right to a judgment for the part admitted to be due. Ho provision is made for an award of costs to him upon the entry of that judgment, unless he elects not to continue the action for the remainder of the claim, in which case he is awarded costs as upon a final judgment in any other case. If, therefore, he elects to continue the action, it seems to have been the intention of the legislature to award him costs only in case he succeeds, and recovers an amount which would entitle him to costs had he originally brought his action for the amount not conceded to be due. The right to this judgment depends upon this section of the Code, and the only judgment that the plaintiff on such an application can recover is that allowed by this section, which does not include costs, except upon the condition that he elects not to continue the action for the amount not conceded to be due. The case of Bradbury v. Winterbottom, 13 Hun, 536 , which, upon its face, may seem to be in conflict with these views, however is not, because the judgment in that case was entered under an offer made under § 758 of the Code of Civil Procedure, and the question there was whether or not the plaintiff was entitled to costs upon such offer. The order must, therefore, be reversed, and motion granted, but without costs.

Van Brunt, P. J., and Ingraham, J., concur.