
    SUPREME COURT.
    New York and New Haven Railroad Company agt. Robert Schuyler and others.
    Where several defendants not united in interest, make separate defences byseparafco answers, and recover against the plaintiffs separate judgments for damages in the nature of counter-claims, and who arc respondents to appeals brought by the plaintiffs to review those judgments, and which judgments are affirmed on appeal, with costs to the respondents, they are each entitled to taxseparatebills of costs.
    
      New York Special Term, April, 1865.
    Appeal from taxation. The defendants Belmont, Deane and Hooper, claim separate bills of costs on the plaintiffs' appeal from" the judgment on the assessment of damages rendered by Judge Ingraham. By that judgment these defendants separately recovered damages against the plaintiffs as follows: August Belmont, $108,225.25; Samuel Hooper, $8,201.01; John Deane, $2,651.02. They had putinseparate answers, settingup distinct and independent interests and claims for damages; one as a lender of money upon 1ns stock, and the others as purchasers of theirs.
    This judgment of the special term (June 30,1864), upon the assessment in favor of these defendants, gave them three separate bills of costs of appeal to the general term from the first judgment of Judge Ingraham, which denied them damages in this action, and gave costs to. neither party. From this judgment of June 30, 1864, the plaintiffs appealed to the general term as to these three defendants, with others, o The general term affirmed the judgment, “ with costs to the respondents who appeared on this appeal." The clerk taxed the costs of defendant Belmont, but refused to tax those of Hooper and Deane. From his decision this appeal is brought.
    Thomas H. Rodman, for defendants Belmont, Hooper and Deane.
    
    
      I. These defendants having been compelled by the nature of the case to answer separately, and to establish by proof as they did, distinct and independent rights of action, by way of counter-claim against the plaintiffs, for which they recovered distinct awards of damages, are entitled to sepa rate bills of costs. '
    1. The indemnity in the nature of costs, is by the Code secured to “ the .party,” not the attorney (Code, § 303).
    2. The judgment of general term, fairly construed, entitled each respondent to costs. The judgment of special term was “ affirmed with costs to the respondents who appeared on the appeal.” This is not to be literally interpreted, for if so, all the defendants combined could have but one bill of costs. It means that every respondent to -the plaintiffs’ appeal—that is, every defendant who had judgment in his favor, either in his individual, partnership or representative capacity, which judgment the plaintiffs had sought to get reversed, and had failed, should have his costs. In other words, every defendant who was severally interested to sustain the judgment in his favor, and who, if a contrary decision had been rendered at special term, could have separately appealed, was “ a respondent.” Whoever was capable of being an appellant, was a respondent to the plaintiffs’ appeal.
    II. The spirit, if not the letter of the Code, contemplates that defendants in such case should have separate bills of costs. Section 306 provides : “ In all cases when there are several defendants not united in interest, and making separate, defences by separate answers, and the plaintiff fails to recover against all, the court may award costs to such of the defendants as have judgment in their favor, or any of them.” This section applies to a case when the plaintiff “fails to recover against all the defendants.” These plaintiffs did fail to recover against all the defendants. As to several the complaint was dismissed with costs. The section covers “ all cases” of that class, legal and equitable. Here the defendants may have costs if their interests are not united, and they have put in separate defences by separate answers, irrespective of the number of attorneys emyloyed by them. The intention was evidently to indemnify the defendant who had succeeded in maintaining his separate defence upon his separate answer, which seems very just. Here defendants not united in interest, having made separate defences by separate answers, and having recovered separate judgments for damages in the nature of counterclaims, and being respondents to appeals brought by the plaintiffs to review those separate and distinct adjudications, in each of which but one of the defendants has an interest, claim only the same indemnity. The old rule is fairly stated in 2 Hoffman’s Chancery Practice, 86, that where the same solicitor appears' for different defendants, and separate answers are put in, or other proceedings had by or for the defendants separately, the taxing officer should consider whether such separate answers or other separate proceedings were necessary or proper, and if in his opinion any part of the costs occasioned thereby was unnecessarily or improperly incurred, the same shall be disallowed. (Chancery rule, 130 ; Wendell agt. Lewis, 8 Paige, 622.)
    Where a separate answer, and separate defence or establishment of a cross demand was indispensable, as here, no question could arise as to the right of each defendant who obtained a decree, to costs. Where in an action of tort, there is a verdict in favor of certain of the defendants, and in favor of the plaintiff against the remaining-defendants, the defendants prevailing are entitled to costs of course, under section 305 Code, although all the defendants had joined in a single answer (Daniels agt. Lyon, 9 JV. Y. R. 549).
    William Tracy, for plaintiffs.
    
   Ingraham, J.

I think each of the defendants is entitled to tax separate bills of costs.  