
    Hiscox v. New Yorker Staats-Zeitung and Ottendorfer.
    (New York Common Pleas
    Special Term,
    March, 1893.)
    After two actions brought for the same libel had been consolidated, defendant made an offer of judgment, with costs, in the consolidated action, which was accepted before notice of trial was served therein. Held, that by the consolidation the first two actions were discontinued, and that plaintiff was entitled to costs only for proceedings before trial in the consolidated action, and disbursements made or incurred therein since the entry of the order of consolidation.
    Motion by both parties for a new taxation of costs. The facts are stated in the opinion.
    
      
      Samuel Bh/the Rogers, for plaintiff.
    
      J. H. K. Blamielt, for defendants.
   Gtieg-erioh, J.

This action is the result of the consolidation of two actions against the Staats-Zeihmg and Mr. Ottendorfer, respectively. The Ottendorfer case was commenced first, and the plaintiff afterward brought suit against the newspaper. Both actions were brought for the same libel, published in the aforementioned newspaper. Issue was joined in the Staats-Zeitung case, which was placed on the calendar, and a notice of trial was served. Issue was joined in the case against Mr. Ottendorfer and a notice of trial was served, but the cause was not put upon the calendar.

On February 9, 1893, an order was entered consolidating these two actions into one, entitled against both defendants, and directing the service of an amended complaint and answer in the consolidated action, and that “ said cause retain its place upon the calendar.” A few days thereafter the defendant made an offer of judgment, with costs, in the action so consolidated, which was accepted and the plaintiff is about to enter judgment thereupon. Ho notice o'f trial has been served in the consolidated action. The plaintiff’s proposed bill asked for costs to date in the Staats-Zeihmg case, and these were allowed by the clerk, although objected to by the defendant. The plaintiff asked also for costs in the Ottendorfer case, which, on being objected to by the defendant, were disallowed by the clerk.

Both parties apply for a review of the clerk’s taxation. The plaintiff contends that “ neither action was discontinued,” but that both actions “ continue alive,” and that they “ simply merge into each other.”- The authorities, however, do not ■ favor this contention. By consolidation, the other actions were • discontinued and only the consolidated action remains. Blake v. Mich. So. R. R. Co., 17 How. Pr. 228. The case of Earl v. Lefferts, 1 Johns. Cas. 395, decided in 1800, seems to hold to the contrary; but this case cannot be regarded as an authority, •for the very objects of consolidation are to prevent the unnecessary accumulation of costs and a multiplicity of actions. Thompson v. Shepherd, 9 Johns. 262 ; Brewster v. Stewart, 3 Wend. 441; Blake v. Mich. So. R. R. Co., 17 How. Pr. 228; Third Ave. R. R. Co. v. Mayor, etc., 54 N. Y. 159. See 2 McCarty’s Civ. Proc. Rep. 177, note on consolidation of actions.

Where a consolidation is ordered, the successful party will be entitled to tax only the costs of the consolidated action, unless the right to tax the costs of the discontinued action is reserved in the order. Blake v. Mich. So. R. R. Co., 17 How. Pr. 228; 1 Rumsey’s Pr. 236. Hogeboom, J., in delivering the opinion of the court in the case of Blake v. Mich. So. R. R. Co., 17 How. Pr. 228, well says:I know of no principle by which costs, in actions discontinued, can be included in another action, even though it embraces the cause of action in the first. Provision for such costs must be made in the discontinued actions before they finally cease to exist.”

Inasmuch as the order of consolidation contains no provision reversing the right to costs of the original actions, already accrued, it follows that the plaintiff is not entitled to costs in either of them. Blake v. Mich. So. R. R. Co., 17 How. Pr. 228.

The plaintiff, therefore, should be allowed only costs of the consolidated action.

For these reasons, the taxation of the plaintiff’s costs should be set aside, and a new taxation directed before the clerk, who should allow to the plaintiff costs and disbursements in the consolidated action only from the time of the consolidation of the original actions, viz., February 9, 1893, to the time when the offer of judgment was made, and disallow items in the two actions which were consolidated. The clerk will, therefore, allow only for proceedings before notice of trial, and disbursements made or incurred since February 9, 1893, to the time when the offer of judgment was made.  