
    The Newell Universal Mill Company, Resp’t, v. Jane B. Muxlow, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    1. Replevin—Pleading—When answer creates several issues.
    In an action of replevin the defendant, in her answer, asserted a claim, to several of the chattels, and demanded an affirmative judgment for their return or award to her. She denied that all the property was placed on-the premises by the plaintiff, and averred that portions were put there hy. . others, and set up as a defense that the plaintiff was not the owner of the property, and that it was so affixed to the freehold that it "became fixtures. The plaintiff succeeded as to some portions of the property and the defendant as to the rest. Feld, that the answer created several issues.
    
      2. Costs—When both parties entitled to—Code Civ. Pro... § 3234.
    In an action of replevin, when the answer creates several issues and plaintiff succeeds as to some portions of the property and the defendant as to the rest, both parties are to he treated as actors or plaintiffs and "both are entitled to costs. Aak&rman v. De Lude, 36 Hun, 44, followed
    Appeal from an order denying a motion to direct the clerk to tax costs in favor of the defendant.
    
      
      Edward P. Wilder, for app’lt; George P. Gordel, for resp't.
   Brady, J.

This is an action of claim and delivery. The plaintiff charged the defendants, four in number, with possession of the property. Two of the defendants only appeared. One of them disavowed possession and control of the property, and prayed only for a dismissal as to himself. Defendant-appellant asserted a claim to several of the chattels named in the complaint, and demanded an affirmative judgment for their return or award to her. She denied, in her answer, that all the property was placed on the premises named in the complaint by the plaintiff, and averred that a portion was put there by a corporation known as the Colloseum Company, and that other portions thereof were placed there by a corporation known as the New Colloseum Company, who purchased the same from the plaintiff.

She set up as a defense, that the plaintiff had not the title to the property, having made an absolute sale of it, receiving payment therefor from the New Colloseum Company, and for a further defense that the property had been so affixed to the freehold that it became fixtures. And further that she had a lien upon the property by reason of the indebtedness of a tenant. The answer thus created several issues, some of them relating to the whole property and some to parts of it, and the controversy was presented in such form that verdicts might be found in favor of the plaintiff and the defendant-appellant which actually took place. The plaintiff succeeded as to some portions of the property and the defendant-appellant, as to the rest. The question presented on these facts is, whether the appellant is entitled to costs against the plaintiff on the verdict in her favor. Section 3234 of the Code provides as follows: “In an action specified in section 3228 of this act, wherein the complaint sets forth separately two or more causes of action, upon which issues of fact are joined, if the plaintiff recovers upon one or more of the issues, and the defendant upon the other or others, each party is entitled to costs against the adverse party, unless it is certified that the substantial cause of action was the same upon each issue, in which case the plaintiff only is entitled to costs. Costs to which a party is so entitled, must be included in the final judgment by adding them to or offsetting them against the sum awarded to the prevailing party, or otherwise, as the case requires. But this section does not entitle a plaintiff to costs in a case specified in subdivision fourth of section 3228 of this act, where he is not entitled to costs, as prescribed in that subdivision.”

This action is plainly one of those mentioned in section 3228, being an action to recover a chattel, and as we have seen, according to the provisions of the section quoted,, where there is a recovery by the plaintiff and defendant, each party is entitled to costs against the adverse party, unless it is certified that the substantial cause of action was the same upon each issue, in which case the plaintiff only is entitled to costs.

No certificate such as is contemplated has been given and it is quite evident that it could not be, in consideration of the issues presented and which have been specially named,, resulting from the averments in the answer of the defendant, appellant. It may be that the absence of the certificate mentioned, according to the provisions of the section-just referred to, establishes the right of the defendant to-costs. Indeed, there would seem to be no doubt about the-propriety of that conclusion. But to pursue the subject further, it is a well-established doctrine, for which it is not. necessary to cite authorities, that in an action of this kind both parties are actors or plaintiffs, and are so treated in consideration of the numerous questions which have arisen in controversies of this kind; hence the context of section 1128 of. the Code, as follows: “Where the action is brought to recover two or more chattels, the verdict, report, or decision may award to one party one or more distinct chattels, which can be identified and set apart from the others, and the residue to the other party; and, if necessary, the complaint must be amended so as to conform thereto. The final judgment rendered thereupon must award to each party the same relief, with respect to the finding in his favor, as if separate judgments were rendered, except that where each party is entitled to an absolute award of a sum of money against the other the smaller sum must be deducted from the greater and the balance must be awarded.”

The right of the defendant, however, to costs is pot without authority expressly in point. The provisions of the Code bearing upon the subject are kindred to those of the Revised Statutes, and Justice Daniels, in the case of Ackerman v. Du Lude (36 Hun, 44), has considered elaborately the very question now under consideration. The conclusion that he arrived at, and the result of his investigation, are adopted as a clear exposition of the law on the subject. He cites among others the case of Seymour v. Billings (12 Wend., 285).

In that case, which was one of replevin, the plaintiff charged the defendant in one count with taking 25,000 feet of white pine boards. The jury rendered a verdict for some of them in favor of the defendant assessing their value, and the rest to the plaintiff assessing their value also, with six cents damages. Defendan l' s motion for costs was granted. The learned justice said that effect must be given to the verdict in the same manner as though the declaration had coutained two distinct counts for the respective parcels of boards, and that the costs must be disposed of as though the pleadings had been in technical special form. And further that the general rule in the action for replevin was that each party should have the costs of the issues in which he succeeded, both being, a© the learned judge said, considered as plaintiffs or actors. See Crittenden v. Crittenden, 1 Hill, 360.

We are not unadvised of the decision in the case of Kilburn v. Lowe (37 Hun, 237), but in that case it appears that there was but one cause of action set forth in the complaint; one issue of fact joined by the pleadings; that the property was all taken on one occasion by a single act, anrl that no certificate had been given as contemplated by the code that the substantial cause of .action was the same upon each issue. The court in considering the question, however, seems to have overlooked the legal fiction that in actions of this character both parties are plaintiffs, and disposed of it upon the proposition that as the plaintiff had but a single cause of action under the language of section 3234, he was not entitled to costs. The learned justice, in delivering the opinion of the court, in that case referred to the case of Ackerman v. De Lude (supra), and discussed it upon what was said in the opinion delivered to be a meagre report of the case. However this may be, we think that the case of Ackerman v. De Lude, is a more correct view of the statute, and therefore accord fo it the higher place in our estimate. For these reasons we think the order appealed from should be reversed and the motion granted, with ten dollars costs and the disbursements of the appeal.

Van Brunt, P. J., and Macomber, J., concur.  