Braden v. Kakhaiser — 3 N.Y. Super. Ct. 760

Majority

p. 760

Braden v. Kakhaiser, and another.

Headnote

In the actions mentioned in section three hundred and four of the code, if judgment he rendered for two defendants who have defended by the same attorney, only one bill of costs can be allowed to both defendants.

May 31, 1851.

This was an action of assault and battery against two defendants, who appeared by the same attorney, but answered separately. Their defences were in some measure distinct. A verdict was rendered in favor of both, and their attorney presented to the clerk for adjustment, a separate bill of costs in favor of each. The plaintiffs claiming that they were entitled only to a single bill of costs, the question was brought before I)uer, J., at chambers, and decided after consultation with the other justices of the court.

8. P. Huff, for the plaintiff,

J. Lux, for the defendants.

in announcing the decision, said, the court saw no reason for deviating from the rule which had prevailed in cases like this from a very early period until the code of procedure took effect. It I» true, the code, in terms, makes the costs allowed, rather an indemnity to the prevailing party, than the measure of compensation between attorney and client. But it was intended to adopt fixed rules in respect to costs given in the actions mentioned in section three hundred and four; and this cannot be carried out, if the circumstances of separate answers when put in by the same attorney be allowed to confer the right to separate costs. A full bill to each defendant in such a case, will be certain in most instances, to give to both more than an indemnity; and we think it is better to adhere to the practice adopted under the old system, that only a single bill of costs can be taxed for all the defendants who appear by the same attorney.