Bradley v. Fay

18 How. Pr. 481

• Court: New York Supreme Court
• Decided: November 15, 1859
• Status: Published

Opinion

Johnson, Justice.

It is now settled that the statute, giving double costs to officers in actions brought against them for acts done by them in their official character, is not repealed or affected by the Code. (Barth agt. Gilman, 18 N. Y. R. 260 ; S. C., 17 How. 1.) The former practice, however, in allowing or refusing costs in such cases, must be held still to prevail, and no such costs can be allowed to an officer who has joined in a plea of justification with one who is not entitled to double costs. (Wales agt. Hart, 2 Cowen, 426.) It is different where the officer and the other party answer separately.

The reason of this seems to be that, upon a single verdict, in a joint answer, there can be but one taxation of costs, and, the other party having no right to doable costs, the officer joining in the answer of justification, and having a joint verdict, loses his right to such costs. (Row agt. Sherwood, 6 Johns. 109.)

It is alleged, in the answer, that the defendant Lovell, in what he did, acted in aid and assistance of the sheriff only. The statute gives double costs “ to any other person,” in actions against him for any act done by the command of such officers, or in their aid and assistance. Bat this, I apprehend, applies to third jiersons only who are called upon by the officer to assist him, and who have no connection with, or interest in .the execution of the process, and are not parties to the action w proceeding in which the process originates.

The defendant Lovell, being one of the plaintiffs in the action, was acting in his own behalf, and not solely in aid of the .sheriff, and is not one of the persons for whose benefit the statute was intended, and had no right to double costs.

The motion must, therefore, be denied.