McIntyre v. Wynne

16 N.Y.S. 540, 21 N.Y. Civ. Proc. R. 208, 1891 N.Y. Misc. LEXIS 2107

Opinion

Bookstaver, J.

On the trial of this action the learned judge charged the jury that if they found in favor of the plaintiff they might find against the two defendants indifferent sums, and the jury, acting on such instructions, did find in favor of the plaintiff and against the defendants in different amounts. This instruction necessarily implies that there may be two judgments in this action, and I feel bound to follow the decision of the trial judge in this respect, especially as the defendants appeared by separate attorneys, and interposed separate defenses. It therefore seems to follow that there should be two bills of costs taxed, in accordance with Comstock v. Halleck, 4 Sandf. 671, and that the decision in Buell v. Gay, 13 How. Pr. 31, cannot be followed in this action.