
    THE BRIDGEPORT INSURANCE CO. a. WILSON.
    
      New York Superior Court;
    
    
      General Term, March, 1861.
    Costs of Several Defendants.
    Where there are several defendants, who make separate defences, and each succeed, each is presumptively entitled to a full bill of costs, unless it appears that the defences were severed for the sake of costs, and of oppressing plaintiff.
    Appeal from an order adjusting costs.
    The facts appear in the opinion.
   By the Court.—Hoffman, J.

—This is an appeal from an order adjusting costs, on an appeal from the adjustment of the clerk.

The action was brought against four defendants on an indemnity-bond. Three are described as principals, and one as surety. The three were partners at the time of giving the bond,. but not at the commencement of the action. Two of the partners put in a joint answer. Goll, the other former partner, appeared and answered separately, as did Brewster, the surety; all by separate attorneys, in no way connected with each other.

The several defendants were united in interest. The bond was joint. The answers were almost identical; the same in language, containing the same defences in each instance.

The complaint has been dismissed, and judgment given for the defendants. The order appealed from allows full bills of costs for the defendants against the plaintiff.

Section 305 of the Code provides that costs shall be allowed of course to the defendant, in the action mentioned in section 304, unless the plaintiff be entitled to costs.

This, no doubt, is to be construed as applicable to the case of several defendants, as to one: and to several defending? collectively as one defendant. It does not exclude the idea of costs being allowed to one or more of several defendants defending separately.

Section 306 does provide for such a case, when some of the defendants, who make separate defences, succeed, and others fail. But this is only when such defendants are not united in interest. The court, in such cases, is allowed to give costs to such of the defendants as have judgment in their favor.

It is an argument of no little weight, that, when the Code has expressly authorized a separate award of costs to successful defendants not united in interest, it would seem to exclude a similar power when they are so united.

Yet we cannot conceive that the Legislature meant to deprive a defendant, though united in interest, of the privilege of defending at the expense of the plaintiff, by an attorney of his own selection. By the rules of pleading, formerly, they could all have united in the plea; but if they severed, they did not commit the fault of duplicity in the pleading. (Chitty on Pl, 1, 506.)

In Corbet a. Ward (3 Bosw., 632), there was' an action against two defendants for recovery of money, for services alleged to have been rendered to themt, and on their promise to pay therefor; and the referee decided that the plaintiff could have judgment against one, but not against the other; and a'judgment was entered against the one, and the action dismissed as to the other. It was held that the costs of the successful defendant could be allowed. Decker a. Gardner (4 Seld., 29) was referred to, in which the defendants had put in a single answer, in which each defendant stated separately, and not jointly, the matters of defence on which he relied. The jury found a verdict against one, which carried costs, and a verdict for the other. The Court of Appeals decided that the defendant was entitled to costs, as of course, under section 305. That, it is true, was an action in tort, and this is an action on contract; but, in our view of the meaning of séction 305, this difference is unimportant.

The true.construction of section 305 is, then, to give to each of several defendants, who succeeds, his costs, and at. least presumptively he is entitled to them, whether he has united in a common, or made a separate defence, by a different attorney. The general power of the court may, however, be sufficient to control the subject, when it appears that there has been a separation for the mere purpose of increasing the costs and oppressing the plaintiff. In the Court of Chancery such power was exercised by the"80th Rule of 1830. (See also Wendell a. Lewis, 8 Paige, 618;.and Gaunt a. Taylor, 2 Beavan, 346.)

No case like that suggested being made out. by the plaintiff, the order appealed from must be affirmed with costs.

White, J.

—In this case an appeal is taken to the general term from an order made by the. court' at special term, denying the plaintiffs’ motion for a retaxation of the defendants’ costs in this action.

° The suit was brought upon an indemnity .-bond executed by the defendants, Thomas Wilson, James E. Goll, Henry P. Wilson, and Henry Brewster. The three first-named defendants were partners in business at the time of the execution of the bond, and executed it as principals. The other defendant, Henry Brewster, executed it as surety for his co-defendants. He is and was.'then a resident of Connecticut. Hie other defendants were and are residents-of the city of New York. The partnership existing between them had been dissolved before the commencement of 'this action, and the defendant Goll was not on speaking terms with his former copartners, the Wilsons, and occupied.towards them, in'th'eir business affairs, an antagonistic position. He appeared, therefore, and answered separately by Platt, Gerard &. Buckley, his attorneys. The defendants Wilson appeared and answered by James W. Wilson, as their attorney; and the defendant .Brewster appeared and answered in like manner separately, by William D. Booth, his attorney.

The defendants having succeeded in the action,-three bills of costs, one for each defendant, or sets of defendants, appearing and defending separately, were taxed dr adjusted by the clerk against the opposition of the plaintiffs, who appealed from that taxation to the special term of this court, alleging that only one bill could be taxed for all the defendants; that the defences were all one and the same, and that the- defendants should- not be allowed to sever, and thus unnecessarily and improperly seek to oppress the plaintiff with more costs than were required for the proper protection of their rights,—those rights being common to all, and the interest of all the defendants in the subject-matter of the controversy being a joint interest, and no one defendant having any objection to present to the plaintiffs’ recovery, which was not equally available for and possessed by all the other defendants.

It is true that the court will not permit any litigant before it to conduct the defence or prosecution of an action in an oppressive manner, when it has the opportunity or means to interpose its authority., and .prevent injustice of that character. It will not, when it can prevent it, permit a party to realize the unjust fruit of proceedings taken in a cause, not for the purpose of protecting or enforcing any right, but solely with a design to mulct an adversary in unnecessary and unreasonable costsi And if the severance of the defence in this action was of the character alleged by the plaintiffs,—that is, if it were a mere unnecessary and oppressive device to extract treble costs from an opponent,—it would he such a case as the court could and would lay its hand on and prevent the accomplishment.

But we do not think the defendants in this action are obnoxious to a charge of this kind. The' affidavits and papers upon which the appeal has been argued before' us fully disprove any improper motive or purpose such as is alleged against them. Hostile relations subsisted between some of the defendants, and it would hardly be reasonable to require that either of them should, under such circumstances, relinquish the right which every man possesses to defend himself in person, or by his own attorney, and place --his cause in the hands of parties with whom he was at variance, and with whom it would not be in human nature that he could feel that he was as safe as if he had retained the matter under his own control.

The other defendant, Brewster, was a surety, residing in another State, unconnected in any manner with his co-defendants ; and thus situated, andin view of the embarrassments and controversies in which the parties for whom he had become responsible were. involved, it was neither improper nor surprising that he should choose not to abdicate the management of his own defence in favor of those who had brought him into the peril which rendered a defence necessary.

There appearing, therefore, to be nothing collusive or unfair, but, on the .contrary, that the defences were conducted separately in good faith, there is no ground remaining upon which the defendants’ right to recover costs severally, as they have appeared, can be denied.

In all actions “ for the recovery of money,” section 305 of the Code gives a defendant costs as a matter of right and of course, when the plaintiff, under the provisions of section 304, is not entitled to them. And this is the rule whether the action is founded in tort or on contract. (Decker a. Gardner, 4 Seld., 29 ; Corbett a. Ward, 3 Bosw., 632.)

To give but one bill of costs, where several defendants have justifiably severed in their defences, and appeared separately by different attorneys, would not be giving to them the full measure of indemnity to which the law entitles them. This is the view which has always been taken of this question under both the old and present systems of practice. The case of Castellanos a. Beauville (2 Sandf., 670), in this court, was decided upon this principle; and we do not think the amendment of 1851 to section 306 of the Code, which has been referred to by the counsel for the plaintiffs, affects this particular question, this case not being one embraced within that section of the Code.

The order, therefore, made at special term, must be affirmed, with ten dollars costs to the defendants.  