11 N.Y. 50 | NY | 1874
Before the amendment of 1851 to section 306 of the Code, the provision contained in that section that “ when there are several defendants not united in interest and making separate defences 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,” related only to actions other than .those referred to in sections 304 and 305, and was so con
All the cases in which a different decision was made arose before the amendment of 1851 took effect (July 30, 1851), except the cases of Corbett v. Ward (3 Bos., 632), and Zink v. Atterburg (18 How. Pr., 108). Corbett v. Ward was based wholly on the case of Decker v. Gardiner (4 Seld., 29) and the amendment of 1851 seems to have been overlooked. In Zink v. Atterburg the amendment of 1851 was considered, and the conclusion reached was that, where one of several defendants succeeded and judgment was rendered against the
. The orders, of.the General and Special Terms .should be reversed, with costs, and the, motion granted.
All concur.
, Ordered accordingly.