Wilbur v. Wiltsey

13 How. Pr. 506

• Court: New York Supreme Court
• Decided: January 15, 1857
• Status: Published

Opinion

By the court—Balcom, Justice.

The defendant Hudson appeared by a separate attorney, and demurred to the complaint in each action. He had judgment in his favor in the actions, and was rightfully allowed to recover a separate bill of costs against the plaintiffs in each action. Making a separate defence by a separate demurrer must be regarded the same as making a separate defence by a separate answer, in determining the right of a defendant to recover a separate bill of costs against the plaintiff. (See Code, § 306.)

It is entirely immaterial, whether or not Mr. Becker was legally substituted as attorney for the defendant Wiltsey ; and it is equally immaterial as to the time that Van Burén and Robinson were substituted as attorneys for the defendant Robinson.

Neither Wiltsey nor Robinson made a separate defence by a separate answer to either action. They joined with other defendants in answering; and they succeeded at the circuit, in each action, on the same issue, jointly with such other defendants; and neither Wiltsey nor Robinson was entitled to recover a separate bill of costs against the plaintiffs thus far in the actions, (Code, § 306.) They did not claim separate bills of costs, for any proceedings in the actions, prior to the appeals therein to the general term; and they rest their claims to separate bills of costs, upon the appeals, on the ground that they separately defended the .appeals by separate attorneys. This ground is insufficient to uphold their claims.

Wiltsey and Robinson answered in each action, jointly with other defendants; and they jointly succeeded at the circuit, and they must be deemed to have jointly defended the appeals; and also to have jointly succeeded thereon, although they employed different attorneys after the appeals were taken. If they had first appeared, in each action, by different attorneys, but had afterwards joined with other defendants, in answering, they could not be considered as making separate defences to the actions, though their different attorneys had acted throughout the litigation. The manner in which several defendants answer or demur in the same action, determines the question, as to their right to recover separate bills of costs against the plaintiff, so long as they all succeed in the action.

So much of the order, that was made in each action at the special term, must be reversed, as allows the defendant Robinson to recover a separate bill of costs against the plaintiffs; and the $46.78 costs that were adjusted and allowed to such defendant, in each action, by the clerk, must be struck out of the judgment-rolls in the actions, with $10 costs of the appeal in each action, to the plaintiffs against such defendant. And the order, in each action, must be affirmed as to all other matters therein contained, with $10 costs in each action, to the plaintiffs, against the defendant Wiltsey.

Decision accordingly.