
    FAYETTE S. PIERCE, et al., Plaintiffs and Appellants, v. PAUL S. BROWN and MORTIMER S. BROWN, Defendants and Respondents.
    i.—costs.
    1. Sepabate bills fob sbvebal successful defendants.
    (a) § 806 of the Code, as amended in 1851, regulates the whole subject, and confines the right to separate bills to the cases therein expressly mentioned, to the exclusion of all others.
    1. In an action for damages against two defendants who originally appeared and answered by the same attorney, but by separate answers, and subsequently another attorney was substituted for one of the defendants, and thereafter the complaint was dismissed as to both,
    Held,
    that the decision of the taxing officers that separate bills could be allowed, was correct.
    Before Curtis and Sedgwick, JJ.
    
      Decided February 7, 1876.
    Appeal from an order affirming the decision of the clerk taxing a bill of costs of the defendant Mortimer S. Brown. The facts appear in the opinion.
    
      Wm. R. Baldwin, attorney, and M. Compton, of counsel for appellant, urged:
    To entitle a defendant to costs under section 306, on a dismissal of the complaint, it is manifest there must be separate defenses, separate answers, and separate attorneys, and the court must award such costs as a part of the relief (Castellano v. Beauville, 2 Sandf. 670; Tracy v. Stone, 5 How. Pr. 104 ; Brockway v. Jewett, 16 Barb. 590 ; Atkins v. Lefevre, 5 Abb. N. S. 221 ; Crofts v. Rockfeller, 6 How. Pr. 9 ; Fairbank v. Paige, 6 Hill, 267; Perry v. Livingston, 6 How. Pr. 404; Bank v. Sturdy, 15 Abb. Pr. 75; . Allen v. Wheeler, 56 N. Y. 50 ; 3 Wit's Pr. 469 ; Willen & Sheldon v. Wiltsie, 13 How. Pr. 506).
    
      La Roy S. Gove, attorney, and of counsel for respondents, urged:
    The defendants are sued in an action of tort; they put in separate answers ; they had separate attorneys in the action and on the tidal, as they had a right to have. Each is entitled to costs (Castellano v. Beauville, 2 Sandf. 670 ; Colcomb v. Caldwell, 5 How. 336 ; Bridgeport Ins. Co. v. Wilson, 12 Abb. Pr. 209 ; S. C., 20 How. 511). This was always allowed in an action for a tort (Tenbroeck v. Paige, 6 Hill, 267; Stone v. Duffy, 3 Sandf. 761; Marks v. Bard, 1 Abb. Pr. 63; Zink v. Atterburg, 18 How. 108; Decker v. Gardner, 8 N. Y. 29 ; Daniels v. Lyon, 9 Id. 549).
    
      
       Note by Reporters.—See Haye a. Robertson, 38 N. Y. Supr. Ct. 59.
    
   By the Court.—Curtis, J.

The action was brought against the two defendants, to recover damages for defrauding the plaintiffs by conspiracy and collusion. The complaint was dismissed at the trial, and the defendants recovered judgment against the plaintiffs. The clerk allowed costs to each defendant, the judge at special term affirmed the allowance by the clerk, and the plaintiffs appeal from the order of affirmance. Both defendants originally appeared and answered by the same attorney, but by separate answers. Subsequently another attorney was substituted for the defendant Mortimer S. Brown, who claims a separate bill of costs.

The Code, § 306, provides “ That in all actions where there are several defendants not united in interest, and making separate defenses by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor, or any of them.”

This provision of the Code applies precisely to the case of these defendants. They were not united in interest, and they made separate defenses by separate answers. There is no claim, and it does not appear, that the defendants in defending separately, acted in bad faith, and for the purpose of increasing the recovery of costs, or that in allowing costs there was any unreasonable exercise of the discretion of the court.

In the case of Allis v. Wheeler (56 N. Y. 50), overruling some of the earlier cases, it was held that this provision of § 306, as amended in 1851, regulated the whole subject of the recovery of costs in all classes of actions by one or more of several defendants obtaining judgment, and that it confined the right of such recovery to the cases therein expressly mentioned, to the exclusion of all others.

This ruling disposes of the question raised by the appellants on this appeal, and the order appealed from should be affirmed with costs.

Sedgwick, J., concurred.  