61 N.Y.S. 901 | N.Y. Sup. Ct. | 1899
In Van Gelder v. Van Gelder (84 N. Y. 658) it was held that “ costs to the respondents ” in the remittitur meant only one bill of costs for all of the respondents. But there the respondents seem to have been united in interest, or at. least, their several interests were germain to the main issue. Was that the case here?. The insurance company defendant here concededly owed the amount of a life insurance policy. ' The plaintiff claimed it, as did also two others. The plaintiff therefore brought this suit in equity against the insurance company and the said two other claimants, alleging the conflicting claims,, and praying that the plaintiff might be adjudged entitled to the money. “ After ” the suit was begun the defendant insurance company, instead of waiting for the event, paid the money to the said two other claimants, its co-defendants. It afterwards served
The Court of Appeals has held that these two controversies were germain to each other, and affirmed the entire judgment. I confess my inability to see that they were. They seem to be wholly distinct and independent of each other. But that is not to the present purpose, for they were germain, i. e., the Court of Appeals has so decided. That being so it is claimed that the giving of costs to the “ respondents ” by the Court of Appeals meant only one bill for both, the same as in the VanGelder case. But I am reluctant to so construe the remittitur. On this question of costs it seems to me that the actual fact that the issue between the defendants was wholly distinct from and bore no relation whatever to the issue between the plaintiff and the defendants, should govern. The plaintiff should not be made to share his costs with the defendant insurance company because it prevailed over its two co-defendants in the issue litigated between it and them. That is no matter to the plaintiff. If the defendant insurance company had failed on such issue, or if such issue had not been raised at all, the plaintiff would be in the very same case that he is now, viz., with his judgment against the
The motion is denied, without costs.