
    Lewis D. Browning, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1892.)
    
    Costs—Recovery by both parties—Code Civ. Pro., § 3234.
    This action was brought to recover for the negligent management of defendant’s locomotives, whereby a division fence between plaintiff’s lands was set on fire, by reason whereof certain cattle were destroyed, and also for failure to maintain a proper fence along defendant’s road, by reason of which plaintiff’s cattle escaped on the road and were killed. Both causes of action were controverted by the answer. Plaintiff recovered on the second cause of action, and a verdict was directed for defendant on the first, on the ground that by an ancient deed the owner of the adjacent property was required to maintain fences. Held, that there was a recovery by both parties within the meaning of § 3234 of the Code, and that both were entitled to costs.
    Appeal by the defendant, The New York, Lake Brie & Western BaiJroad Company, from an order made at the Allegany special term, in January, 1892, denying defendant’s motion for costs, under § 3234 of the Code of Civil Procedure.
    
      James H. Stevens, Jr., for app’lt; V. A. Willard, for resp’t.
   Per Curiam.

This appeal must be governed by the decision of this court, made in the case of Burns v. D., L. & W. R. R. Co., 42 St. Rep., 171, where it was stated in the opinion of Mr. Justice Macoinber that the meaning of the word “ recovers,” used in this section, clearly contemplates a decision upon a question of fact, which, if allowed to remain unreversed, is conclusive upon the parties in respect to the issues there presented.

In the case now before us, three causes of action were stated in the complaint, each one of which was controverted in the answer. The first cause of action consisted of the allegation that the defendant so carelessly and negligently managed its locomotives and cars as to set fire to a division fence, owned by the plaintiff, between two of plaintiff’s lots of land adjacent to the railroad; that by reason thereof seven head of cattle, of the" value of $170, were destroyed, for which a recovery was sought.

The second cause of action was, that at a time stated, two cows ■of the plaintiff, of the value of $25 each, escaped from the plaintiff’s lands, through a defective fence which it was the duty of the defendant to maintain, and entered upon the lands and railroad •of "the defendant, and were run over and killed by the defendant’s locomotive.

The third cause of action is unimportant to the consideration of -any question arising upon this appeal.

The learned justice, at the trial, ruled that he should instruct the jury, which he accordingly did, that upon the first cause of action the jury should render a verdict for the defendant, upon the ground, as appears from the moving affidavits which are not -contradicted, that by an ancient deed of the lands pertaining to the first cause of action, there was a covenant which ran with the lands, which required the owner of the adjacent property to maintain fences, and for that reason no recovery could be had against this defendant.

It will thus be seen that the defendant succeeded upon a question of fact against the plaintiff upon the first cause of action. Upon the second cause of action the j ury rendered a verdict for the value of.the two cows, namely fifty dollars, and interest from the time of the killing.

Under these circumstances, inasmuch as the causes of action were separately stated and issues of fact were taken upon each of them, and a decision in favor of the defendant upon the first cause .of action and in favor of the plaintiff upon the second cause of action was rendered, all the provisions for correlative bills of costs contained in the section above mentioned must be applied; for in regard to each of such causes of action there was a decision by a proper tribunal of a question of fact, which, as long as it remained unreversed, was conclusive upon the parties to this action.

It is clear, therefore, that the plaintiff had a “ recovery ” upon the second cause of action, and it is equally clear that the defendant had a “ recovery ” upon the first cause of action.

This, it seems to us, is the precise case contemplated by this provision of the Code; and it follows that the order appealed from should be reversed and the bill of costs of the defendant, arising upon the first cause of action, should be taxed in defendant’s favor.

Order appealed from reversed, with ten dollars costs and disbursements, and the defendant’s motion granted, with ten dollars •costs.

Dwight, P. J., Macomber and Lewis, JJ., concur.  