Girou v. Metropolitan Distributors, Inc.

181 Misc. 345, 43 N.Y.S.2d 388, 1943 N.Y. Misc. LEXIS 2218

• Court: New York Supreme Court
• Decided: June 30, 1943
• Status: Published

Opinion

Eder, J.

Review of taxation of costs. The plaintiffs sued the defendant to recover damages alleged to have been occasioned by the negligence of the defendant. Each plaintiff sued on his own behalf but united, in the action as parties plaintiff as authorized by section 209 of the Civil Practice Act. The plaintiff Giron recovered. The plaintiff Shapiro was unsuccessful and the defendant taxed a bill of costs against him over objection and exception noted by said plaintiff, who now applies to review the correctness of said ruling by the taxation clerk; he contends that in the circumstances the defendant may not tax costs. I am of the opinion that this is a tenable contention. .

There is a conflict of authority on the point; but I think the reasoning set forth by Mr. Justice Foster (now of the Appellate Division) in Boldin v. Smith (161 Misc. 696) is the more persuasive. In Salimoff & Co. v. Standard Oil Co. (259 N. Y. 219) the court made the significant statement: “ The very purpose sought to be accomplished by section 209 would be somewhat frustrated if by consolidation into one action, costs were allowed on the basis of separate actions.”

It follows that the ruling of the taxation clerk must be and it is hereby reversed, plaintiff’s objection to taxation sustained, and the entire bill of costs as taxed against the plaintiff Shapiro is disallowed. Settle order.