
    Tenbroeck and wife vs. Paige and Finch.
    In an action against two for a tort who sever in pleading and act by different attorneys and counsel, if both defendants be acquitted, their attorneys are each entitled to a full bill of costs against the plaintiff, so far as the services were separate and distinct.
    Otherwise, however, as to witnesses* fees, if the witnesses for both parties were the same.
    As there can be but one judgment in the suit, there should be no allowance for more than one record; and so in respect to the other incidental charges for perfecting judgment and issuing execution.
    In cases of this kind the costs of both defendants must be taxed at the same time, so that the charges in the two bills may be properly adjusted.
    Motion by plaintiffs for the re-taxation of costs. The action was assault and battery, and the plaintiffs were nonsuited on the trial. The defendants appeared by different attorneys—the attorneys not being partners nor in any way connectéd in business—and pleaded separately; and on the trial different counsel appeared for each defendant. The questions were, however, the same in relation to both defendants. Each defendant taxed a separate bill .of costs in the same manner as though he had been a sole defendant, except as to the judgment record, filing &c.; and one judgment was perfected-against the plaintiffs for the aggregate of the two bills of costs.
    
      D. Burwell, for the plaintiffs,
    moved for a re-taxation of the costs. He cited 2 R. S. 615, § 16, 18; Griswold v. Sedgwick, (3 Wend. 326.)
    
      M. T. Reynolds, for the defendants.
   By the Court, Bronson, J.

This is a case where two defendants, sued jointly for a tort, have, without any improper motive, appeared and defended by different attorneys and counsel. Each defendant has pleaded separately, and, as to most things, has incurrred the same expense as though he had been a sole defendant. I see no reason why each should not have a full bill of costs, so far as the services were separate and distinct. (Gambrell v. Earl of Falmouth, 5 Adol. & Ellis, 403.) This will include the retaining fee of attorney and counsel, the pleadings, and most of the other charges down to the trial. It will include also brief and attorney and counsel fee on trial for each defendant. I had some doubt about more than one counsel fee; but my brethren think it should be allowed. When we come to those services and expenses which were rendered or incurred alike for both defendants, there should be but one taxation. Here the questions to be tried, and the witnesses, were the same as to both defendants; and there should be but one taxation of witnesses’ fees. And as there can be but one judgment, there should be no allowance for more than one record and the other incidental charges in perfecting the judgment and issuing execution. In cases of this kind, although the defendants may have separate bills, the costs of all must be taxed at the same time. (Smith v. Campbell, 4 Moore & Payne, 469; 6 Bing. 637, S. C.) This is the only way in which the charges can be properly adjusted. There must be a re-taxation on the principles which have been mentioned.

Motion granted. 
      
      
        а) See Webb v. Bulger & Bulger, (4 Hill, 588.)
     
      
      б) See The Albany and West Stockbridge Rail-Road Company v. Cady and Cady, (ante,p. 265.)
     