
    SUPREME COURT.
    Robert C. Roberts agt. Edgar A. Warren.
    
      Costs — Several actions far same cause — Effect of one recovery — Code of Civil' Proeedwe, section 8231.
    In an action for an assault and battery committed by two defendants, on a motion by defendant for leave to serve supplemental answer setting up tbe recovery, and satisfaction of a judgment against another party for the same cause of action;
    Meld,, that the provisions of section 3231 of the Code of Civil Procedure (for the recovery of but one bill of costs when several actions are brought for the same cause) applies to this class of actions; and piaintiff is not entitled to costs, but only to taxable disbursements which have not been incurred and were not included in the other case.
    
      Oneida Special Term,
    
    
      March, 1886.
    Motion by defendant for leave to serve supplemental answer' setting up the recovery and satisfaction of a judgment against another party for the same cause of action. The action being; for an assault and battery committed by the two defendants.
    
      H. F. & J. Chupe, for motion.
    
      P. O. J. DeAngelis, for plaintiff.
   Merwin, J.

The question seems to be as to what costs the-defendant should pay as a condition to serving the supplemental answer. The claim of the defendant is that not more than $10 costs should be imposed. This is on the theory that section 3231 of the Code applies to this class of actions. It was so held in Quin agt. Bowe (4 Law B., 72; S. C., 10 Daly, 505).

This provision, or one similar to it in the old Code, section 30-1, has been in force since 1819, but no direct adjudication is cited except the above. The question was not up in Mitchell agt. Allen (25 Hun, 543), nor decided, in Abbott agt. Johnstown, &c., H. R. R. Co. (24 Hun, 135).

I am inclined to the opinion that the contention of the defendant’s counsel is correct and that section 3231 applies. The plaintiff, however, should have any taxable disbursements that he has incurred and that were not included in the other case, and should have leave to discontinue.

An order on this basis may be submitted  