11 Duer 203 | The Superior Court of New York City | 1855
By a decree of the general term of this court," made on the 11th of October, 1852, it was declared that the defendant, Yan Rensselaer, had no-title or interest in the funds referred to in the pleadings; but that the same belonged exclusively to the defendant, De Peyster, and that the claim set up by defendant, Yan Rensselaer, was totally unfounded and untrue. The decree declared a certain sum to be due from the plaintiff, Miller, to the defendant, De Peyster, for rent, and certain other sums from the other plaintiffs. A large part of the moneys so decreed to be due, had been paid into court by the plaintiffs upon filing their bills. These sums were adjudged to belong to De Peyster, and the-plaintiffs ordered to pay him the balance respectively, if there-should remain any balances after payment of their costs, to-which the decree declared them entitled, as well as to the-costs of the suit instituted against them by the defendant, De Peyster, in the Supreme Court. These bills were bills of inter-pleader, filed by the respective plaintiffs, after suit at law commenced against them by De Peyster, and by reason of a claim for such rents, made upon the parties by the defendant, Yan Rensselaer.
The court at general term did not proceed to determine the question of costs as between the co-defendants in the inter-pleader suits, in consequence of an averment that an arrangement had existed between the late John Watts, and Van Rensselaer, and also between Van Rensselaer and the defendant, De Peyster, relating to the enforcement of the-claims for rent. An order of reference was made to inquire into the-existence and extent of any such arrangement, and the question of costs is now to be settled upon the report which has been made upon that matter, and the accompanying evidence.
The defendant, De Peyster, denies in his answer any such agreement as is alleged, and there is no proof whatever to establish it against him.-
Evidence is adduced to shew that there was such an arrangement made with Mr. Watts, the effect of which would be that the institution of such suits for rent, was a violation of a contract between Yan Rensselaer and himself, and should at least exempt the latter from paying costs." This testimony consists-
It should be observed that Mr. Watts died in 1836, and the suits in question were not commenced until the year 1847.
This defendant has failed in proving any agreement competent to vary the ordinary rule in these cases as to costs.
That rule is well settled, and renders the unsuccessful claimant responsible for costs in all cases except where special circumstances have induced the court to exercise its discretionary power in his favor. (Richards v. Salter, 6 John. Ch. Rep. 448, and cases cited; also Mason v. Hamilton, 1 Simons, 19).
The costs allowed under- these decisions are undoubtedly all the successful defendant’s costs in equity, and all the costs which are taken by the plaintiff in the interpleading bills both in equity and at law. I have had some doubt as to the costs of that defendant at law, and these were not given in Eichards v. Salter, nor apparently in Henary v. Key, (Dickens, 291). But it was done in the well-considered case of Dawson v. Hardcastle, (2 Cox, 277), and in Mason v. Hamilton, (1 Simons, 19). It appears to be the reasonable rule.
The' order will be, that the defendant De Peyster recover from the defendant Man Eensselaer all the costs which the plaintiff shall be paid or retain out of the money in court, or the unpaid balance in their hands respectively, and also all the -costs of such defendant in this suit, and of the action at law commenced by him.
The order will be drawn by the defendant Man Eensselaer’s .attorney, and submitted for settlement upon notice.
