HEYE against ROBERTSON

HEYE against ROBERTSON. New York Superior Court; Special Term, February, 1874. Costs in Action foe Specific Property.—Several Defendants.—Separate Bills. In an action against two defendants for the recovery of specific personal property, where both appear and answer by the same attorney, they are not entitled to separate bills of costs, although they put in separate answers, and one has a dismissal of the complaint, and the other a judgment in his favor for the return of the property. Under section 306 of the Code of Procedure, allowing costs in certain actions in the discretion of the court, it is not for the court to determine what costs shall be awarded, nor whether there shall be one or more bills, but this is to be decided by the taxing ofiicer ih the first instance. Ernest Heye sued Edwin R. Robertson and Samuel Winternitz to recover possession of personal property alleged to have been wrongfully detained from him by the defendants. The action was tried by a referee, who dismissed the complaint as to the defendant Robertson, ‘' with costs ; ’ ’ and rendered a separate judgment in favor of the defendant Winternitz, that he have a return of the property, with damages for the taking thereof in the action by the plaintiff, and also that he have costs. The defendants appeared by the same attorneys, but put in separate answers. The clerk taxed a separate full bill of costs for each defendant. From which taxation the plaintiff appealed. J. K. Hill, for plaintiff. Van Wyck & Green, for defendants. See Stoddard v. Clarke, 9 Abb. Pr. N. S., 310. [MAJORITY — Monell, Ch. J.] Monell, Ch. J. The specific award of costs to each of .the defendants by the referee is supposed to have been authorized by section 306 of the Code. That section provides that “ in other actions costs may be allowed or not at the discretion of the court. 2. In all actions where there are several defendants not united in interest, and making separate defenses by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor, or any of them.” The preceding section 304 provides that costs shall be allowed of course to the plaintiff upon a recovery in the following cases: “ 2. In an" action to recover the possession of personal property.” And by section 305: “ Costs shall be allowed of course to the defendant in the actions mentioned in the last section, unless the plaintiff be entitled to costs therein.” ' The decisions are conflicting in respect to the construction of these several sections. One, in the court of appeals (Decker v. Gardner, 8 N. Y., 29), holding in effect, that the defendants are entitled to costs as of course ; and others (Bulkley v. Smith, 1 Duer, 704, and Williams v. Horgan, 13 How. Pr., 138), that they are in the discretion of the court. But as the referee awarded costs specifically to each of the defendants, it is not material in this case which construction of the sections is correct. If the case was within section 305, then the defendants must have costs of course. If it is within section 306, they were in the discretion of the referee. It is necessary to refer to these sections, however, to determine the material questions whether the defendants are entitled each to a bill of costs, it not being disputed that one Mil is allowable. The general current of decision has been against taxing two bills where the defendants have appeared and answered by the same attorney. (Castellanos v. Banville, 2 Sandf., 670 ; Colemb v. Caldwell, 1 Code R. N. S., 41; Bridgeport Ins. Co. v. Wilson, 12 Abb. Pr., 209; S. C., 7 Bosw., 699; Stone v. Duffy, 3 Sandf., 761). And I am unable to find any case where the right has been upheld. The construction by the courts of section 306 has not required that they should determine what costs or how many bills the defendants were entitled to tax, but merely that, in certain actions, costs were in the discretion of the court (See the cases of Bank of Attica v. Wolf, 18 How. Pr., 102; Wilklow v. Bell, Id., 397). The court cannot, under that section, determine what costs a defendant shall receive, nor whether there shall be one or more bills. Costs, merely, are awarded, and then the taxing officer must decide, upon principles applicable to the question, what amount and what number of bills he will tax. Therefore, in this case, the taxing officer was wrong in not following the current and clear weight of authority that, under the circumstances • of the case, there should be but one bill of costs. All that is meant by subdivision 2 of section 306 is that, if one or more defendants succeed, he or they may, in the discretion of the court, have costs. It does not mean, nor can the court so award, that they shall or may have separate bills. One of the taxed bills must be disallowed.