New York Elevated Railroad v. McDaniel

Headnote

Costs — where on a tried before a referee the plaintiff recovers a judgment against one of the defendants only, the other defendant can only have costs awarded to him upon a motion to the court — Code of Cwil Procedure, seas. 1018,3229.

Appeal from a judgment in favor of the defendant McDaniel, and against the plaintiff, dismissing the complaint as to said McDaniel and for $261.48 costs. The judgment having been entered upon the report of a referee, and also from an order made at a Special Term awarding costs and an extra allowance to the defendant McDaniel.

The claim made was for the recovery of $1,106.88 over-paid under a contract made by the plaintiff with the Philadelphia Architectural Company for the material required for building certain stairways for passenger stations on the road of the plaintiff.

The court at Q-eneral Term, after approving of the finding of the referee that the defendant McDaniel, to whom the Philadelphia Architectural Company had assigned the contract, was not bound to refund the payment made to his assignor, said : “ After the determination of the action, the defendant McDaniel moved the court for costs in his favor, and upon the hearing of the parties an order to that effect was made, but the right to make it has been denied because of the omission of the referee by his report to adjudge costs in favor of this defendant. This, however, was not one of the subjects which, by section 1018 of the Code, appears to have been committed to the determination of the referee. The authority, on the contrary, was confided expressly to the discretion of the court

by section 3229 of the Code, and that has been considered tbe proper course of proceeding for this purpose under provisions similar to those contained in the present Code. (Bank of Attica v. Wolf, 18 How., 102 ; Lindslay v. Deafmdorf, 43 id., 90; Williams v. Blumer, 49 id., 12.)

“ The allowance of cost to the defendant McDaniel was within the authority expressly given in this matter to the • court over a case of this description. But as there was nothing difficult or extraordinary in the action or the defense, the additional allowance of $175 was not authorized. To this extent the order requires to be corrected, and it should as to the allowance be reversed, and with that qualification the judgment should be affirmed and the residue of the order should be also affirmed, without costs.”