
    Newell Universal Mill Co. v. Muxlow et al.
    
    
      (Supreme Court, Special Term, New York, County.
    
    June 25, 1888.)
    Replevin—Pabtial Judgment fob Plaintiff—Costs.
    Where plaintiff in replevin recovers judgment for one of several chattels sued for, and defendant recovers as to the rest, the case is not within Code Civil Proc. N. Y. § 3234, providing that where the complaint sets forth separately two or more causes of action upon which issues are joined, if the plaintiff recovers upon one or more of the issues, and defendant upon the others, each party is entitled to costs, and plaintiff only is entitled to costs.
    At chambers. Motion to retax costs.
    Replevin for chattels of the aggregate value of $2,500. Plaintiff recovered a verdict for one of the chattels, an engine, valued at $300, and defendants for the remainder. The defense upon which defendants succeeded as to such part of the property was that the same had become attached to realty of which they were the owners. Both parties presented bills of costs for taxation, but the clerk taxed the costs in favor of plaintiff. Defendants claimed to be within Code Civil Proc. § 3234, providing that where the complaint sets forth separately two or more causes of action, upon which issues are joined, if the plaintiff recovers on one or more of the issues, and defendant upon the others, each party is entitled to costs.
    
      Edward P. Wilder, for the motion. Holt & Butler, opposed.
   Andrews, J.

The authorities are conflicting,—compare Kilburn v. Lowe, 37 Hun, 237, (costs denied to defendant,) with Ackerman v. De Lude, 36 Hun, 46, Coon v. Diefendorf, 2 How. Pr. (N. S.) 389, (costs offset,)—and in view of the fact that, as against this plaintiff, the defense was without merit, and that it would be great hardship if the plaintiff, after losing its property, should also be saddled with a bill of costs, I have concluded that the plaintiff should have the benefit of the doubt, and that the motion for a retaxation should be denied, without costs. •,  