Majority
Headnote
These were bills of interpleader, filed by tenants of certain premises, after a claim for the payment of the rent made upon them by the defendants, De Peyster and Van Rensselaer respectively. The defendant De Peyster had sued the plaintiffs at law, and such suits had been enjoined. The court decided that the rents in question belonged to the defendant De Peyster, and awarded to the plaintiffs in the interpleader suits their costs, both of their own suits, and in the action at law brought against them; to be paid out of the moneys deposited by them. The question of liability for costs as between the defendants was reserved until the result of an inquiry as to an alleged agreement between the parties relating to such costs — it being reported that no such agreement was made out.By the COURT.
By a decree of tbe General Term of this court, dated tbe 15tb of October, 1852, it was declared that tbe defendant Van Rensselaer bad no title or interest in tbe funds referred to in tbe pleadings; but that tbe same belonged exclusively to the defendant De Peyster; and that the claim set up by defendant Van Rensselaer was totally unfounded and untrue. Tbe decree declared a certain sum to be due from tbe plaintiff Miller, to tbe defendant De Peyster, for rent, and certain other sums from tbe other plaintiffs. A large part of tbe moneys so decreed to be due, bad been paid into court by tbe plaintiffs, upon filing their bills. These sums were adjudged to belong to De Peyster, and tbe plaintiffs were ordered to pay him tbe balance respectively, if there should remain any balances after payment of their costs, to which tbe decree declared them entitled, as well as to the costs of tbe suits instituted against them by tbe defendant De Peyster, in tbe Supreme Court. These bills were bills of interpleader filed by tbe respective plaintiffs after suits at law, commenced against them by Mr. De Peyster, and by reason of a claim for such rents made upon tbe parties by tbe defendant, Van Rensselaer.
Tbe court at General Term did not proceed to determine tbe question of costs as between tbe co-defendants in tbe interpleader suits, in consequence of an averment that an arrangement bad existed between tbe late John Watts and Mr. Van Rensselaer, and also between Van Rensselaer and tbe defendant De Peyster, relating to tbe enforcement of tbe claims for rent. An order of reference was made to inquire into tbe existence and extent of any such arrangement; and tbe question of costs is now to be settled upon tbe report which has been made upon that matter, and tbe accompanying evidence.
The defendant De Peyster denies in his answer any such
Evidence is adduced to show that there was such an arrangement made with Mr. Watts, the effect of which would be, that the institution of such suitS.for rent was a violation’ of a contract between Yan Rensselaer and himself, and should at least exempt the latter from paying costs. This testimony consists of several letters from Mr. Watts, none of which in any degree establish the allegation. The other is the testimony of the highly respectable counsel, who can only speak of a contemplated arrangement for the collection of the rents, and payment into the Trust Company, which he allows was not consummated. There is also some unimportant evidence of Anthony Pricker, as to a conversation with Mr. Watts, in which he was told by the latter that he need not pay any more rent till the matter was settled.
It should be observed, that Mr. Watts died in 1836, and the suits in question were not commenced until the year 1847.
This defendant has failed in proving any agreement competent to vary the ordinary rule in these cases, as to costs.
That rule is well settled, and renders the unsuccessful claimant responsible for costs in all cases, except where special circumstances have induced the court to exercise its discretionary power in his favor. (Richards v. Salter, 6 John. Ch. Rep. 448, and cases cited; also Mason v. Hamilton, 5 Simons, 19.)
The costs allowed under these decisions are undoubtedly all the successful defendants’ costs in equity, and all the costs which are incurred by the plaintiff in the interpleading bills, both in equity and at law. I have had some doubts as to the costs of the defendant in his own suit at law, and these were not given in Richards v. Salter, nor apparently in Henry v. Key, (Dickens, 291.) But it was done in the well considered case of Dawson v. Hardcastle, (2 Cox, 277,) and in Mason v. Hamilton, (5 Simons, 19.) It appears to be the reasonable rule.
The order will be, that the defendant De Peyster recover from the defendant, Yan Rensselaer, all the costs which the plaintiffs shall be paid out of the money in court, or retain out of the unpaid balance in their hands respectively, and also all the costs of such defendant in this suit, and of the action at law commenced by him.