Corbett v. Ward — 16 N.Y. Super. Ct. 632

Majority

p. 632

Corbett, Plaintiff and Respondent, v. Ward, Defendant and Appellant.

Headnote

In an action against two defendants, “ for the recovery of money,” in which the plaintiff claims to recover for services alleged to have been rendered for them and on their promise to pay therefor; if either defendant has a verdict in his favor; or if on a trial of the action before a referee the complaint is dismissed as to him; he is entitled to recover his costs of the action, from the plaintiff, as a matter of course, and of strict right.

(Before Boswobth, Ch. J., and Woodruff, Pierrepont and Moncrief, J.J.)

Submitted, February 12;

decided, February 19, 1859.

This action comes before the Court, on an appeal by the defendant Ward, from an order made, pro forma, on the 15th of January, 1859, by Mr. Justice Pierrepont, which order declared that the defendant Ward is not entitled to costs, in this action, and directing that the adjustment of costs in his favor which the clerk had made, be disallowed.

Bobert K. Corbett; the plaintiff, brought this action, against John A. 'Davis and Charles H, Ward, as defendants, to recover from them for services rendered, alleging in his complaint, that the services were rendered at the request of the defendants, .and on their promise to pay therefor.

The defendants united in an answer in these words, viz.: “The defendants in this action, for answer to the complaint therein, severally deny each and every allegation contained in the complaint.”

The referee, to whom the action was referred, decided that the plaintiff rendered services for Davis, on an employment by Ward who represented, that he and Davis were partners. That in truth Ward was but the agent of Davis, and although hable to the plaintiff, the latter could not recover against both in this action, but might elect the defendant, against whom he would take judgment. He elected to take judgment against Davis.

The referee thereupon decided, that the plaintiff was entitled to a judgment against Davis for $800 and costs; and that the complaint should be dismissed as to Ward.

p. 633

The clerk having adjusted costs in favor of Ward, the plaintiff moved at Special Term to have the adjustment overruled, and costs to Ward disallowed. On that motion an order was made “ that the said taxation he disallowed and that the said Ward is not entitled to costs in this action.”

From that order the defendant Ward appealed to the General Term.

H. Sacie, for defendant Ward, appellant.

Wm. Allen Butler, for plaintiff and respondent.

By the Court.

—In Decker v. Gardiner & Matthews, (4 Seld., 29;) the defendants put in a single answer, in which each defendant stated “separately and not jointly” the matters of defense on which he relied. The action was for “ the recovery of money.” The jury found a verdict against Matthews which carried costs, and a verdict in favor of Gardiner. The Court of Appeals decided, Taggart, J., dissenting, “ that the defendant Gardiner was entitled to costs as a matter of course, under § 305, of the Code of Procedure,” id., 30. That; it is true, was an action of tort, and this is an action on contract. But, in our view of the meaning of § 305; this difference is unimportant.

The present action, being one “for the recovery of money,” is controlled by the case cited. Whether the referee erred in deciding that the plaintiff could not recover in this action against both defendants, on the facts proved, is a question which does not arise on this appeal. The order appealed from must, therefore, be reversed.

Order reversed.