
    McCarthy v. Innis.
    
      (Supreme Court, General Term, First Department.
    
    October, 1891.)
    Costs—Allowance to Defendant—Separate Causes of Action.
    The complaint in an action for libel set out in separate counts two articles, the publication of which was alleged to be libelous. Issue was taken on both counts, and on the trial the complaint was dismissed as to the second count, and a verdict was rendered for plaintiff on the first count. Held, that the dismissal of the complaint as to the second count was not a recovery by defendant so as to entitle him to costs under Code Civil Proc. N. Y. § 3234, which provides that in actions wherein' the complaint sets forth separate causes of action on which issues of fact are joined, and plaintiff recovers on one or more of such issues, “and the defendant upon the other or others, ” each party is entitled to costs against his opponent.
    Appeal from special term, New York county.
    Action by Charles P. McCarthy against William J. Innis -for libel. From an order denying defendant’s motion for costs, defendant appeals.
    Argued before Van Brunt, P. J., and Daniels, J.
    
      E. H. Benn, for appellant. Chas. P. McCarthy, (Frederick E. Crane, of counsel,) for respondent.
   Daniels, J.

The action was brought to recover damages for the publication of articles alleged to have been libelous. Two different articles were set forth, each in a separate division or count of the complaint. -Issue was taken by the answer on each cause of action, and on the trial so much of the complaint was dismissed as contained a statement of the second cause of action. The issue as to the first was submitted to the jury, aud a verdict returned upon it for tile sum of $409 for the plaintiff. The defendant on this disposition of the action claimed to be entitled to costs. But the clerk refused to adjust his bill of costs, and it was affirmed by the order of the special term, from wliidi Hie appeal lias been taken. To entitle a defendant to costs under section 3234 of the present Code of Civil Procedure, he must recover upon one or more of the issues. But the defendant did nob recover on either issue. What he did was to defeat a recovery on the second issue.by the plaintiff; and, as there was no recovery in his favor, this section of the Code did not entitle him to costs. The case of Blashfield v. Blashfield, 41 Hun, 249, has been presented as in conflict with this construction, and apparently that is the fact. The action there was upon two notes, and the evidence as to one was stricken out for the reason that a recovery upon it was barred by the statute of limitations; and, in an opinion which contains a special reference to the previously decided cases, it was held that this disposition of one of the causes of action entitled the defendant to costs, although the recovery on the other note by the plaintiff entitled him to costs. And that was affirmed by the general term. But as there was in fact no recovery by the defendant, and no more than a successful defense as to one of the notes, tins decision is not in entire harmony with this section of the Code, or with the construction given to it in the earlier case of Cooper v. Jolly, 30 Hun, 224. There the complaint contained a statement of 23 causes of action for so many diffeient penalties, and the plaintiff recovered for two only. The defendant claimed costs under the same section, but they were denied him; and that was sustained on appeal to the court of appeals. This decision is directly applicable to the present appeal, and is not compatible with the defendant's claim of costs. In Ackerman v. De Lude, 36 Hun, 44, the action was for the recovery of the possession of personal property, and upon the trial the plaintiff-recovered a verdict for the possession of part-of the propeity, while the defendant had a verdict for the recovery of the residue, as that may-be proper in an action of replevin; and that, presented a case which was within this section, and entitled the defendant to costs, without affording any sanction to the claim of this defendant. The case of Kilburn v. Lowe, 37 Hun, 237, is also an authority against the' defendant; and so, very plainly, are Heath v. Forbes, (City Ct. N. Y.) 11 N. Y. Supp. 87; Crosley v. Cobb, 42 Hun, 166; Barlow v. Barlow, 35 Hun, 50; and, in its reasoning, the case of Reed v. Batten, (Sup ) 6 N. Y. Supp. 708. The weight of authority is against the right of the defendant to costs, and so is the language of this section of the Code, rendering it dependent upon a recovery in his favor, which is something beyond defeating the plaintiff upon a separate and distinct cause of action when he is successful in the residue of the action. The order should be affirmed, with $10 costs and the disbursements. 
      
       Code Civil Proc. N. Y. § 3234,-provides that “in an action specified in section three thousand two hundred and twenty-eight 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 dr 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. ”
     