Fischer v. Langbein — 38 N.Y. Sup. Ct. 272

Majority

p. 272

JOHN FISCHER, Appellant. v. GEORGE F. LANGBEIN and Others, Respondents.

Headnote

Costs— separate bills of costs — when the respondents, upon an appeal, can tax but one bill.

In an action for false imprisonment, the two defendants having answered and defended separately, were allowed separate bills of costs. Upon an appeal taken by the plaintiff to the General Term, the case of each defendant was argued by the same counsel. The General Term affirmed the judgment, “ with costs and disbursements of said appeal to the defendants, respondents, to be taxed by the clerk of this court.”

Held,, that the respondents could tax but one bill of costs.

Appeal from an order made at a Special Term denying a motion for the readjustment of costs.

Henry Wehle, for the appellant.

George F. Lcmgbein and Jesse K. Furlong, for the respondents.

The action was for false, imprisonment, and upon the trial the-plaintiff was non-suited. The defendants, having answered and defended separately, were allowed separate bills of costs. From the judgment the plaintiff appealed to the' General Term, and it appears from the order which was entered that the defendants were each represented by the same counsel upon the appeal arguing the case in their behalf. By the decision which was made the judgment was affirmed “ with costs and disbursements of said appeal to-the defendants, respondents to be taxed by the clerk of this-

p. 273

court.” The defendants presented separate bills of costs upon the appeal, which were allowed by the clerk, and sustained by the order from which the appeal has been taken, and a large array of authorities have been cited in support of their respective rights to recover such costs. But these decisions were made under circumstances not controlling upon this application, for they were generally directed to the consideration of the right of two or more defendants, defending separately, to costs upon the determination of the issues in the action in their favor, while the present case depends upon the effect which is to be given to the language of the order entered upon the decision of the appeal. That certainly does not award separate costs to each of the defendants, but it merely gives a general direction affirming the judgment, with costs. And as there was but one appeal in the case, and but one notice of it served, it could only have been intended to include the costs of that appeal. This construction seems to have been given to a similar direction made by the Court of Appeals in Von Keller v. Schulting ( 45 How., 139 ), while for other reasons it was not extended to the order of the General Term. In the case of the West Shore, etc., Railway Company ( 28 Hun, 505 ) a like point was considered .by the General Term of the Second Department. The Court of Appeals there had dismissed the proceedings with costs, and that direction was held to include only one bill of costs to all the respondents. This decision is entirely consistent with the language of the order now before the court, and plainly restricts the right of the respondents to one bill of costs on the appeal. The order should be reversed, together with the usual, costs and disbursements, and an order entered limiting the costs of the appeal to one bill.

Davis, P. J., and Brady, J., concurred.

Order reversed, with ten dollars costs and disbursements.