Bridgeport Fire & Marine Insurance v. Wilson

—In this case an appeal is taken to the general term from an order made by this court at special term, denying the plaintiffs’ motion for a retaxation of the defendants’ costs in the action.

The suit was brought upon an indemnity bond executed by the defendants, Thomas Wilson, James E. Coll, Henry P. Wilson, and Henry Brewster. The three first named defendants were partners in business at the time of the execution of° the bond, and executed it as principals. The other defendant, Henry Brewster, executed it as surety for his co-defendants. He is and was then a resident of Connecticut. The other defendants were and are residents of the city of New York. The partnership existing between them had been dissolved before the commencement of this action, and the defendant Coll was not on speaking' terms with his former copartners, the Wilsons, and occupied towards them in their business affairs an antagonistic position. He appeared, therefore, and answered separately, by Platt, Gerard & Buckley, his attorneys. The defendants, Wilsons, appeared and answered by James W. Wilson, as their attorney; and the defendant Brewster appeared and answered, in like manner, seperately by William D. Booth, his attorney.

The defendants having succeeded in the action, three bills of costs, one for each defendant, or set of defendants, appearing and defending separately, were taxed, or adjusted by the clerk upon opposition, against the plaintiffs, who appealed from that taxation to the special term of this court, alleging that only one bill could be charged for all the defendants; that the defenses were all one and the same, and that the defendants should not be allowed to sever, and thus unnecessarily and improperly seek to oppress the plaintiffs with more costs than those required for the proper protection of their rights; those rights being common to all, and the interest of all the defendants in the subject matter of the controversy being a joint interest, and no one defendant having an objection to present

It is true that the court will not permit any litigant before it to conduct the defense or prosecution of an action in an oppressive manner, when it has the opportunity or means to interpose its authority and prevent injustice óf that character. It will not, when it can prevent it, permit a party to realize the unjust fruit of proceedings taken in a cause, not for the purpose of protecting or enforcing any right, but solely with a design to mulct an adversary in unnecessary and unreasonable costs. And if the severance of the defense in this action was of the character alleged by the plaintiffs, that is, if it were a mere unnecessary and opressive device to extract treble-costs from an opponent, it would be such a case as the court could and would lay its hand on, and prevent the accomplishment of the intended oppression.

But we do not think the defendants in this action are obnoxious to a charge of this kind. The affidavits and papers upon which the appeal has been argued before us, fully disprove any improper motive or 'purpose such as is alleged against them. Hostile relations subsisted between some of the defendants, and it would hardly be reasonable to require that either of them should, under such circumstances, relinquish the right which every man possesses to defend himself in person or by his own attorney, and place his cause in the hands of parties with whom he was at variance, and with whom it would not be in human nature that he could feel that he was as safe as if he had retained the matter under his own control. The other defendant, Brewster, was a surety, residing in another State, unconnected in any manner with his co-defendants, except by the mere circumstance that he was their surety; and thus situated, and in view of the embarrassments and controversies in which the parties for whom he had become responsible were involved, it was neither improper nor surprising that he should choose not to abdicate the management of his

There appearing, therefore, to be nothing collusive or unfair, but, on the contrary, that the defenses were conducted separately in good faith, there is no ground remaining upon which the defendants’ right to recover costs, severally, as they have appeared, can be denied. In all actions “for the recovery of money,” § 305 of the Code gives a defendant costs as a matter of .right and of course, when the plaintiff, under the provisions of § 304, is not entitled to them, And this is the rule whether the action is founded in tort or on contract. (Becker v. Gardiner,4 Seld. 29 ; Corbett v. Ward, 3 Bosw. 632 .) To give but one bill of costs, where several defendants have justifiably severed in their defenses, and appeared separately "by different attorneys, would not be giving to them the full measure of indemnity to which the law entitles them. This is the' view which has always been taken of this question under both the old and the present systems of practice. The case of Castellanos v. Beauville, ( 2 Sandf. 670 ,) in this court, was' decided upon this principle; and we do not think the amendment of 1851 to § 306 of the Code, which has been referred to .by the counsel for the plaintiff's, affects this particular question, this case not being one embraced within that section of the Code.

■ The order, therefore, made at. special term must be affirmed, with $10 costs to the defendants.

Ordered accordingly.