
    Edmund D. Crosby, Resp’t, v. Calvin F. Cobb, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed November, 1886 )
    Costs—What must appear to secure ah award op costs to both parties—Code Civ. Pro., § 3234.
    At the trial of an action, and upon the motion of the defendant, it was held that neither the second nor the third counts of the complaint stated a cause of action, a d the court granted a nonsuit as to the latter count. Held, that defendant had not thereby recovered upon one or more of the causes of action, as must appear before he could be entitled to costs under Code Civ. Pro., £ 3234, the plaintiff having recovered upon the other counts. Blashfidd v. Blashfield, 4 N. Y. State Rep., 144, distinguished.
    Appeal from an order of the special term of Onondaga county denying costs to the defendant.
    
      J. W. Daggett and F. Pierce, for app’lt; A. P. & D. E. Smith, for resp’t.
   Hardin, P. J.

Four counts were stated in the complaint. At the trial, upon defendant’s motion, it was held that the second count did not state a cause of action, also the third count, and the court granted a nonsuit so far as the count was concerned. (See Mem. of Fish, J., and proposed certificate referred to in his Mem.)

Before a defendant is entitled to costs, under section 3234 of the Code of Civil Procedure, it must appear that he has recovered upon one or more of the causes of action. Briggs v. Allen, 4 Hill, 538. It does not so appear in this case. Defendant must stand by and be bound by the holding had at the circuit at his instance.

The section provides that if the plaintiff recovers upon one of the issues of fact, and the defendant “upon the other or others,” then costs may be awarded to each party. If the defendant had demurred to the defective counts, and it had been held that they did not state facts sufficient to constitute a cause of action, of course it could not have been claimed that the defendant had recovered “upon an issue of fact; ” but instead he raised the question at the trial, and it was held, as a matter of law, that the counts were defective. There was no recovery or verdict upon a “cause of action” in favor of defendant. In Blashfield v. Blashfield there was an issue of fact as to each of the two notes set out in the complaint, and a recovery by plaintiff on one and a recovery by defendant on the issue of fact as to the other. That case does not aid the defendant here. There was in the case in hand no recovery by the defendant. Cooper v. Jolly, 30 Hun, 224; S. C., affirmed, 96 N. Y., 667; Kilburn v. Lowe, 37 Hun, 237.

Our conclusion is that the special term order should be affirmed.

Boardman and Follett, JJ., concur.

Order affirmed, with ten dollars costs and disbursements.  