Brown v. Cohan

254 A.D. 20, 4 N.Y.S.2d 883, 1938 N.Y. App. Div. LEXIS 6328

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 27, 1938
• Status: Published

Opinions

Per Curiam.

The plaintiffs appeal from orders denying retaxation of separate bills of costs in each of six actions brought against the same defendant and arising out of the same set of facts. The actions were not consolidated but were tried together as provided by section 96-a of the Civil Practice Act. Defendant was entitled to tax costs in each action as the jury had returned verdicts of no cause of action. Plaintiffs could have avoided this liability by becoming coplaintiffs in one action. However, that procedure would have required them to forego the right to separate bills of costs in each action wherein there was a recovery. Having chosen to chance the larger recovery of costs incident to the six separate actions, they should not now complain because through adverse verdicts the defendant receives a corresponding benefit. (Hoffman v. Grobsmith, 129 Misc. 91; affd., 222 App. Div. 793; Haniford v. Safer, 214 id. 435; Clark v. MacDonald, 62 Hun, 149; Parker v. City of New York, 122 Misc. 660.) The Court of Appeals in Salimoff & Co. v. Standard Oil Co. (259 N. Y. 219) did not have this question under consideration. That appeal involved the number of cost security bonds required from eighteen non-resident coplaintiffs in one action. The dicta in that opinion regarding costs had to do with coplaintiffs in one action rather than with separate actions brought by six plaintiffs.

The orders should be affirmed, with costs in one appeal.

Hill, P. J., Rhodes and Heffernan, JJ., concur; Bliss, J., dissents, with an .opinion; McNamee, J., dissents, and votes to reverse.