Corbett v. Ward

16 Bosw. 632

Opinion

By the Court.

Bosworth, Ch. J.

—In Decker v. Gardiner & Matthews, (4 Seld., 29;) the defendants put in a single answer, in which each defendant stated “separately and not jointly” the matters of defense on which he relied. The action was for “ the recovery of money.” The jury found a verdict against Matthews which carried costs, and a verdict in favor of Gardiner. The Court of Appeals decided, Taggart, J., dissenting, “ that the defendant Gardiner was entitled to costs as a matter of course, under § 305, of the Code of Procedure,” id., 30. That; it is true, was an action of tort, and this is an action on contract. But, in our view of the meaning of § 305; this difference is unimportant.

The present action, being one “for the recovery of money,” is controlled by the case cited. Whether the referee erred in deciding that the plaintiff could not recover in this action against both defendants, on the facts proved, is a question which does not arise on this appeal. The order appealed from must, therefore, be reversed.

Order reversed.