Comstock v. Bayard — 4 N.Y. Super. Ct. 705

Majority

p. 705

Comstock v. Bayard and others.

Headnote

Where in a suit against three, for the recovery of money, two suffer judgment by default, and the third defends the suit and has a verdict in his favor, he is entititled to costs against the plaintiff under section 305 of the code.

April 25, 1850.

Thes was a suit against Bayard, Brinkerhoff and Weeks, to ¡recover the proceeds of goods alleged to have been left with them as partners, for sale. Bayard denied his liability. The other two defendants suffered judgment to go)by default. On the trial, there was a verdict for Bayard, who now claims costs.

The 304th section of the code allows costs of course to the plaintiff, in an action like this, where he shall recover fifty dollars or more. Section 305 gives costs to the defendant in the same actions, unless the plaintiff be entitled to costs therein. Section 306 permits the court to grant costs to defendants not united in interest or in their defences, who succeed, when the plaintiff recovers against others. This section

p. 706

applies to other actions, than those specified in the two previous; sections.

If the costs rested in our discretion, we would grant them to Bayard; but he is clearly entitled to them by the code.. This, follows from the- nature of the action and the fact that the plaintiff is not entitled to costs against him. Section 305 gives the defendant costs in such case, and it applies to any defendant prevailing in the suit against the plaintiff.