De Lamater v. Carman

2 Daly 182

• Court: New York Court of Common Pleas
• Decided: March 15, 1867
• Status: Published

Opinion

Brady, J.

In this case, the defendants appeared by different attorneys, and separate bills of costs were taxed in their favor, for which they had judgment. The plaintiff is the appellant. It was his duty to prepare the case and furnish it to the defendants’ attorneys and the court. The answer of the defendants was substantially the same, and the judgment for all was given at the same time, as the result of one trial. The appeal was heard upon one argument, and it followed, from the nature of the judgment and the appeal, that there must be a judgment of reversal as to all or none. But one counsel was necessary, therefore, and one set of points. For these reasons, but one bill of costs of the appeal should be taxed, unless the general term ordered otherwise, which was not done. The fact that the defendants had separate bills of costs up to the appeal, is a strong reason why there should not be separate bills allowed upon the appeal. I have not been able to find any precedent for such an allowance, and, it seems to me, to be unreasonable. The order at special term should be reversed.

Cardozo, J. I agree that the order in this case should be reversed, for the reason that the questions, upon which the decision of the appeal from the judgment depended, were the same as respects each of the defendants; and, therefore, it was not necessary for all the defendants to print points or prepare for argument.

Daly, F. J"., concurred.

Order reversed.