
    James Freiot vs. Luther L. Adams and Ellis Baker.
    Taxation of Costs.
    
      September Special Term, 1847.
    
      Rensselaer county
    
    This suit was brought upon a promissory note, of which the Defendant, Adams, was maker, and the Defendant, Baker, was endorser. Both Defendants appeared by Hayner & Johnson as their attorneys; a separate plea and notice was put in for each Defendant. On the trial, a verdict was rendered in favor of Baker; Adams having been sworn as a witness in his favor, and having proved the payment of the note. As to the Defendant, Adams, the Plaintiff was non-suited, on the ground of a variance between the note declared on and the note produced on the trial. Upon the taxation of the costs, the Defendants’ attorneys claimed to tax separate bills for each Defendant, up to the time of the verdict; and the taxing officer accordingly taxed Adams’ costs at $44.65, and Baker’s costs at $41.81, up to the time of the verdict, and then taxed for single services after verdict. The Plaintiff’s attorney objected to the allowance for double services for the Defendants, and moved for re-taxation upon that ground.
    A. K. Hadley, for Plff.
    
    H. Z. Hayner, for Defts.
    
   Harris, Justice

The counsel for the Defendants relies upon the position, that a suit brought against the maker and endorser of a promissory note, under the provisions of the statute allowing such parties to be joined in the same suit, is to be regarded in its effect as to costs, the same as if separate suits had been brought against the parties, as was the practice at common law. In this position I cannot agree with him. The act under which the suit is brought, (Session Laws, 1832, p. 489,) provides that it shall be lawful for the holder of any bill of exchange or promissory note, instead of bringing separate suits against the drawers, makers, &c., to include all or any of said parties in one action, and proceed to judgment, &c., as though all the Defendants were joint contractors.” Such a suit, then, is one action against the Defendants as joint contractors, and it is well settled that but a single bill of costs can be taxed in the same action in favor of the same attorney. The case of the maker and endorser of a note being sued together under the statute, forms no exception to the rule. This being but one action, in which both Defendants have appeared by the same attorneys, but a single bill of costs can be taxed—where separate services have been rendered for either the Defendants, such services, if necessary, are properly taxable.

There must be a re-taxation upon these principles, unless the Defendants elect to deduct from their bill the item of $41.31, taxed as the costs of the Defendant Baker.  