
    Thomas C. Arnow et al., Resp’ts, v. John D. Ferguson, Impl’d, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 10, 1890.)
    
    Costs.
    In an action for trespass defendants succeeded, and the court, on plaintiff’s motion, restricted defendants to one bill of costs, which was awarded to the other defendant. Defendant then caused a hill of costs to he taxed in his favor, which was set aside. Held, no error; that so long as the order stood unreversed, hut one judgment for costs could he entered against plaintiffs.
    Appeal from order vacating judgment entered in favor of defendant Ferguson for a dismissal of the complaint and judgment on the issues, with $85.59 costs.
    The defendant Ferguson was a contractor employed by Walter Charles, a highway commissioner, to remove a fence which was an obstruction in the highway. Plaintiff, as owner of the fence, sued Charles, the appellant, and others, for $2,000 damages for trespass. The appellant was arrested in the action, and compelled to give bail. He employed his own regular attorney, who appeared, answered and defended for him. On the trial a verdict was rendered “for the defendants.” After the rendition of the verdict, plaintiff’s attorney asked that the defendants be restricted to one bill of costs, stating no grounds, and presenting no papers on his motion. The court ruled that the question of title to real estate was involved, and therefore that but one bill of costs should be allowed, and that to the commissioner who had appeared by another attorney. Such ruling, however, was not part of the clerk’s minutes, nor of the judgment.
    Appellant thereupon taxed his costs, and entered judgment upon the verdict. On plaintiff's motion the judgment was vacated, and this appeal is from the order vacating judgment.
    
      Wm. 0. Beddy, for app’lt; Baker & Bisley, for resp’t.
   Dykiian, J.

This was an action of trespass against several defendants, and the jury found a verdict for the defendants.

Hpon the rendition of the verdict, the counsel for the plaintiff moved to restrict the defendants to one bill of costs, and that motion was granted, and one bill of costs was awarded to the defendant Charles. Then the defendant Ferguson caused a bill of costs to be taxed in his behalf, and entered a judgment therefor.

That judgment was vacated on motion, and this is an appeal from that order.

The statement of the case shows the irregularity of the judgment. So long as the order made at the trial stood unreversed, but one judgment for costs could be entered against the plaintiff.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Pratt, J., concurs.  