Atkins v. Lefever

5 Abb. Pr. 221

Opinion

By the Court.

Footnotes

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*—Ingalls, J.

—This action was upon a promissory note; and the defendants interposed separate answers, but by the same attorney. The answer of each defendant set up : 1st. The alteration of the note after its execution. 2d. Usury. Upon the trial both defendants prevailed, and the clerk allowed to each a separate full bill of costs against the plaintiff. The plaintiff objected to the allowance of more than one bill of costs. Upon appeal from adjustment, the special term affirmed the same, and the plaintiff appeals to this court. We are unable to agree with the special term, being convinced that but one bill of costs can be allowed against the plaintiff in this action. The defendants appeared by the same attorneys and interposed substantially the same answer (Tracy v. Stone, 5 How. Pr., 104; Crafts v. Rockerfeller, 6 Id., 9 ; Perry v. Livingston, Id., 404 ; Braden v. Kakhaiser, 3 Sandf., 760 ; Brockway v. Jewett, 16 Barb., 590, 593 ; A. & W. S. R. R. Co. v. Cady, 6 Hill, 265). We are aware that there are decisions which seem not to be in entire harmony with the above. In Collomb v. Caldwill. (5 How. Pr., 336), it does not appear whether or not the defendants appeared by the same attorneys. In N. Y. & N. H. R. R. Co. v. Schuyler (29 How. Pr., 89), it appears that the defendants appeared by different attorneys. Such was also the case in Bridgeport Fire & Marine Ins. Co. v. Wilson, (7 Bosw., 699; S. C., 12 Abb. Pr., 209 ; 20 How. Pr., 511), also in Slater Bank v. Sturdy (15 Abb. Pr., 75).

W e are not called upon to express an opinion in regard to ■ the rule which should prevail where the defendants sever, and appear by different attorneys who are in no manner connected in business. We are clearly of opinion that but one bill of costs should be allowed under the facts of this case.

The objection taken to the adjustment was sufficiently explicit.

The order of the special term should be reversed, and the clerk of Ulster county directed to readjust the costs in accordance with the foregoing, and conform the judgment in said action thereto. No costs allowed upon this appeal to either party.

Peckiiam, J., corcuvred.

Hogeboom, J., expressed no opinion.

Present, Ingalls, Hogeboom, and Peckham, JJ.