
    Charles L. Eastman, Resp’t, v. Emily H. Gray, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed November 13, 1894.)
    
    Costs—Defendants.
    Where judgment is rendered in favor of one, but against the other defendant, the former is not entitled to costs of course.
    Appeal from an order striking from the judgment the award of costs to defendant.
    
      John T. Knox, for app’lt; William H. Fiero, for resp’t.
   Bradley, J.

The action was brought against David G. Gray, as maker, and the defendant Emily H. Gray, as indorser, of a promissory note. The latter alone defended. Judgment by default was taken against the maker, with costs. The issue made by the answer of the other defendant was tried, and verdict was directed in her favor, upon which, without any direction of the court, judgment was entered for her costs, adjusted by the clerk. The question is whether she was, as of course, entitled to costs. The right of a party to costs is dependent upon the statute. The plaintiff was entitled to recover costs against the defendant, David G. Gray, the maker of the note. Code Civ. Pro. § 3228. By the next section it is provided that the defendant is entitled to costs of course upon the rendition of judgment in an action specified in the preceding section, unless the plaintiff is entitled to costs ; “ but where in such an action against two or more defendants, the plaintiff is entitled to costs against one or more, but not against all of them, none of the defendants are entitled to costs of course.” Id. § 3229. The latter section takes the place of §§ 305 and 306 of the C.ode of Procedure, which, since 1880, has been superseded by- the Code of Civil Procedure. No substantial change has been made by it in the construction and effect of those two sections as they existed after 1851. Prior to that time the right of a plaintiff to costs on recovery against some, only, of the defendants in an action at law, did not deny to the successful defendant in the same action the right as of course to recover them. Daniels v. Lyon, 9 N. Y. 549. In that year, § 306 of the Code of Procedure was so amended as not to entitle him of course, in such case, to recover costs. Allis v. Wheeler, 56 N. Y. 50; Royce v. Jones, 23 Hun, 453. The provisions of those sections (305 and 306) are embraced in § 3229 of the present Code, and the latter section is entitled to the like construction, as its terms quite clearly import. Yamato Trading Co. v. Hoexter, 44 Hun, 491; 9 St. Rep. 379. It would seem reasonable to give one of two or more defendants, who alone and successfully defend, the same advantages as to costs that he who is a single defendant has in an action at law; but, in all actions where the plaintiff is entitled of course to recover costs, the statute referred to has made the right of a successful defendant in the same action to costs dependent upon the discretion of the court. As defined by the statute, “ the party prosecuting a civil action is styled the plaintiff, the adverse party is styled the defendant.” Code Civ. Pro. § 3338. It is not seen that one of two or more defendants brought into court, who alone defends, can be treated as the only defendant in the action. Both or all of them are made adverse parties by the process and its service upon them. That relation thus created does not cease to exist as to those who default, or continue alone as to those who defend. The right to judgment then arises as against the former, and, as respects the latter, the result of the issue is postponed. The view, therefore, is that the appellant is not entitled, as of course, to costs.

The order should be affirmed. All concur.  