135 N.Y. 268 | NY | 1892
The order appealed from adjudged that the plaintiff was entitled to recover costs in the action, and that the defendant was not. The complaint contains three separate and distinct causes of action, each arising out of the neglect of the defendant to perform its duty as a common carrier. It is alleged that the plaintiff, on three different occasions, delivered property to the defendant within this state to transport to different consignees in three different states, and that by reason of its neglect and failure to transport and carry such property to its place of destination within a reasonable time, the property was damaged and the plaintiff sustained loss in consequence. The defendant's answer put in issue all the material allegations of the complaint, as to each cause of action. *270 It appears that the plaintiff gave no proof whatever in support of the third cause of action, and that at the close of all the evidence, the court granted a nonsuit as to the second cause of action, and submitted the issues upon the first cause of action to the jury, and the plaintiff, on that cause of action alone, had a verdict. Both sides claimed to be entitled to costs. The clerk taxed the bill presented by the plaintiff and rejected that presented by the defendant.
A motion on the part of the defendant for a retaxation was denied at the Special Term, and this order was, upon appeal, affirmed at the General Term. The right of the defendant to costs depends upon the construction to be given to section 3234 of the Code of Civil Procedure, which provides that in certain actions "wherein the complaint sets forth separately two or more causes of action, upon which issues of fact are joined, if the plaintiff recovers upon one or more of the issues, and the defendant upon the other or others, each party is entitled to costs against the adverse party, unless it is certified that the substantial cause of action was the same upon each issue, in which case the plaintiff only is entitled to costs." The plaintiff must admit that all the conditions mentioned in the statute upon which the right of the defendant to costs depends, exist in this case, except possibly one. The complaint sets forth separately two or more causes of action upon which issues of fact were joined and the plaintiff has recovered upon one of the causes of action. The only question is whether the defendant has also recovered upon the other cause of action within the meaning of this section of the Code. The defendant has succeeded in defeating two of the plaintiff's causes of action, but it has been held that something more was intended by the use of the word "recovers." Before the plaintiff is entitled to costs there must, of course, be a recovery in his favor, and this means an affirmative finding, verdict or judgment. The word as used in the section has the same meaning whether applied to a plaintiff or a defendant. This provision of the Code was borrowed from the Revised Statutes (2 R.S. 616), under which it was *271
held that in order to entitle a defendant to costs there must be an actual finding or verdict in his favor, and that where there was a general verdict for the plaintiff and no verdict for the defendant, the latter could not be awarded costs, although he had succeeded in defeating the plaintiff upon one or more of the causes of action set forth in the complaint. (Johnson v.Fellows, 6 Hill, 353; Crittenden v. Crittenden, 1 id. 359;People v. Feeter, 12 Wend. 480; Briggs v. Allen, 4 Hill, 538.) This was the substance of the decision of the Supreme Court in Cooper v. Jolly (30 Hun, 224), when this section of the Code was before it for construction, and this court affirmed the decision in that case without an opinion (
"For drawing interrogatories to be annexed to a commission, or to letters rogatory issued as prescribed in sections 888, 912, 913 and 3171 of this act, ten dollars." There are other provisions of the section giving a designated allowance for certain services in an action, as the procuring of an injunction order, an order of arrest or order appointing a guardian for an infant. The only question that can arise upon an application to tax these statutory charges is whether the proceedings were *273
had, or the particular service actually rendered in the progress of the litigation. If a commission has been issued in the case or an injunction order, or order appointing a guardian granted and remains a part of the record or the proceedings, the statutory allowance follows the right to costs, and neither the taxing officer nor the court can institute an inquiry as to the necessity of the commission or the particular order, or the value of the service performed. In this case the plaintiff was defeated on the second cause of action, notwithstanding the testimony taken by commission to sustain it, but this very testimony elicited either upon the direct or cross-examination may have been the basis of the nonsuit granted upon the defendant's motion. The right of either party to tax the statutory allowance given by law for examination of witnesses by commission did not depend upon success as to the particular cause of action to which the proof was directed, but only upon such success as carried with it the right to general costs in the action. (Code, § 3228.) As the plaintiff succeeded to that extent the fact that he failed to recover upon the second cause of action is utterly immaterial. It does not appear from the record, under which of the several provisions of the Code above referred to, the witnesses were examined at Pittsburg. Nor does it appear whether the testimony was taken at the instance of the plaintiff or the defendant, or whether it was taken by stipulation or under an order of the court, or a commission. Both parties have included in their bills of costs fees paid the "commissioner." We will, therefore, assume that one commission was issued to examine three witnesses at Pittsburg. The fact that counsel have attended at the taking of the deposition does not entitle the successful party to charge any more than he would be entitled to if the same witnesses had been examined upon interrogatories annexed to the commission, and drawn by counsel. Section 307 of the Code of Procedure authorized a similar charge for similar services, but it was held that under that section only one fee of $10 could be charged for drawing all the interrogatories to a commission *274
for the examination of several witnesses. (O'Brien v.Commercial Fire Ins. Co.,
All concur, except EARL, Ch. J., ANDREWS and MAYNARD, JJ., dissenting.
Ordered accordingly.