People v. Feeter

12 Wend. 480

Opinion

Where the plaintiff, in a case in which there are several issues, obtains judgment upon the whole record, and the substantial cause of action is the same in each issue, he is entitled to costs on those issues which are found for him, and is not liable to the defendant for the costs of an issue found in his favor. Thus, where, in an action of debt upon a recognizance, all the issues were found for the plaintiff, except one upon a plea of plene administravit, which was found for the defendant, it was held that the plaintiff was entitled so costs upon the whole record; and was not liable to costs upon the issue found in favor of the defendant.

This case is like the last proceding, of The People v. Haddock, except that the defendant put in a plea oí plene adminis-travit, and a verdict was found upon it in his favor. The defendant insisted upon the authority of the case of Osterhaut v. Hardenburgh, administrator, &c., 19 Johns. R. 266, that he was entitled to judgment for costs upon the issue found in his favor ; but The Court held that the plaintiffs were entitled to judgment of assets guando acciderint, and to costs de bonis testatóris, and under the provisions of the revised statutes, 2 R. S. 617, § 26, were not liable to costs to the defendant upon the issue found in his favor.