Maybury & Clark v. Evans — 19 Wend. 625

Majority

p. 625

Maybury & Clark vs. Evans.

ALB ANY,

Feb. 1839.

Headnote

In ejectment by two plaintiffs, where the declaration contains two counts, one alleging title in one plaintiff, and the other title in the other plaintiff, and a verdict is found in favor of one plaintiff, and as to the other the jury find for the defendant, costs are recoverable by the defendant against the plaintiff who failed to show a right to recover.

Costs in ejectment, where there are two plaintiffs, and a verdict in favor of one, and against the other. The declaration contained two counts, one alleging title in one of the plaintiffs, and an ouster of him, and the other count alleging title in the other plaintiff, and an ouster of him. The same premises were claimed in each count. On the trial the jury found a verdict in favor of Clark one of the plaintiffs, and as to Maybury, the other plaintiff, they found for the defendant, who now moves for a rule that in making up the record, the plaintiffs attorney insert a judgment for costs, in his favor against Maybury.

M. T. Reynolds, for the defendant.

J. Holmes J. A. Spencer, for the plaintiff Maybury.

By the Court,

Since the revised statutes went into effect a plaintiff in ejectment is not entitled to recover, unless he has at the time of the commencement of the suit a valid subsisting interest in the premises claimed, 2 R. S. 304, § 3. Consequently the real claimant only, can maintain the action, § 6, and he must in the declaration specifically state his interest in the premises, § 9, 10. Where there are several plaintiffs, if it be shown that all of them

p. 626

have a right, to recover, the statute directs that the verdict shall be for the plaintiffs generally, but if it appear that one or more of them have not such right, that the verdict shall specify for which plaintiff the jury find, and as to which plaintiff they find for the defendant. § 30. In all actions relating to real estate, enumerated in the fifth chapter of the third part of the revised statutes, (among which the action of ejectment is specified) it is declared that if the plaintiff recover judgment by default, upon confession, verdict, demurrer or otherwise, he shall recover costs, 2 R. S. 613, § 3 ; and by § 16, page 615, in all actions in which the plaintiff would be entitled to costs upon a judgment rendered in his favor, if after the appearance of the defendant, judgment pass against the plaintiff on verdict, &c., the defendant shall have judgment to recover against such plaintiff full costs. Every judgment in the action of ejectment rendered upon a verdict is conclusive as to the title established in such action, upon the party against whom the same is rendered, and against all persons claiming under him, subject to certain exceptions specified in the act, 2 R. S. 309, § 36.

It is obvious from the provisions of the revised statutes above referred to, that the litigation on the part of Maybury, the plaintiff, as to whom the jury found for the defendant, was as important and effectual in respect to the rights of the parties, as if he had been the sole plaintiff; and there cannot be a doubt that had he recovered, he would have been entitled to costs. I do not therefore see how we can deny them to the defendant in this case. Several persons may unite in bringing an action of ejectment, 15 Wend. 601 ; but it is at the peril .of paying costs, if. any of them fail in establishing a right to recover ; and such should be the rule when we advert to the effect now given to a judgment in ejectment, and to the prohibition of any but real claimants as plaintiffs. The amount of the costs in most cases will probably be small, as those incurred in defending against the successful plaintiff cannot properly be charged against the plaintiff as to whom the jury found for the defendant; notwithstanding the defendant is entitled to them, be they more or less.

Motion granted.

Cases cited

Smith & Kniffin v. Dewey 15 Wend. 601 N.Y. Sup. Ct. p. 626