
    Charles J. Quinby, Resp’t, v. John Claflin et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    Costs—Code Civ. Pbo., § 3234.
    A defendant does not so "recover” as to entitle him to costs under § 3234 of the Code unless an affirmative judgment is rendered in his favor.
    Appeal from orders of special term, one affirming the refusal of the clerk to tax defendants’ costs in the action, and the other' denying defendants’ motion for an extra allowance.
    The complaint in this action set up two causes of action.
    In April, 1876, the plaintiff brought his action against the defendants, composing the firm of H. B. Claflin & Co., to recover upon two separate causes of action separately stated in his complaint. Upon the first cause of action the plaintiff claimed to recover the sum of $2,987.73, being the amount in the aggregate of twenty notes and acceptances made by divers parties, which it was claimed were in the hands of the defendants under an agreement by which the defendants were to collect the same and apply the proceeds to the payment of the purchase-money of certain property bought by plaintiff of the defendants. The first cause of action continues further, that the defendants have ever since retained the said notes and acceptances, and such parts thereof as have been collected and have never accounted for the same to the plaintiff.
    The answer of the defendants to the first cause of action avers that at the times alleged in the complaint the defendants were not in the possession of any of the twenty certain notes or acceptances, and, further, that all of said notes and acceptances, so far' as they could be collected, have been collected and credited and allowed to the plaintiff on account of his indebtedness to them, and, further, that such as were not collected and credited and allowed to plaintiff were utterly worthless.
    The plaintiff’s second and separate cause of. action was brought to recover the sum of $3,197.15, being the value of certain property and assets of the late firm of Stoll, Webb & Co., of Charleston, South Carolina, which were purchased by the plaintiff, and which, on the 12th day of April, 1873, were in the custody of one A. G-. Goodwin, at Charleston, in said state. Plaintiff claims that certain of these assets, consisting of notes, drafts, and acceptances and cash, amounting in the aggregate to $3,197.15, were not delivered to plaintiff as they should have been, but were brought to New York by Goodwin and delivered to the defendants, and that the defendants have never in any manner delivered them to plaintiff or accounted therefor.
    . The defendants in answer to the second cause of action, after denying the allegations of the complaint, aver that the notes, drafts and acceptances mentioned did come to the possession of the plaintiff through his agent Stoll, and the proceeds thereof were remitted by Stoll to the defendants in accordance with an agreement and-were credited upon the indebtedness of the plaintiff to the defendants.
    Defendants further aver that in a prior action in the supreme court, wherein these defendants were plaintiffs and the plaintiff was defendant, a full accounting was had of all such notes, drafts and acceptances, and the matters complained of in the complaint were fully adjudicated and passed upon and determined, and judgment entered in these defendants’ favor in that action on the 11th day of March, 1876.
    A judgment in this action in favor of the plaintiff upon the first trial was reversed by the general term on the 13th of September, 1881. An order of reference theretofore granted in this case was in said order vacated and set aside. Thereafter, by consent, the case was again referred to .another referee, Hon. Isaac N. Mills, as sole referee to hear and determine.
    The referee made his report and decision in September, 1890, and found in favor of the plaintiff for a part of the sum claimed in the first cause of action, to wit, for $2,249.42, with interest
    Plaintiff thereafter served his bill of costs and made a motion for an allowance. His costs were adjusted and an extra allowance allowed him. Defendant thereafter served his bill of costs, claiming to tax the same in his favor pursuant to the provisions of § 3234 of the Code of Civil Procedure, and also made a motion for an extra allowance in addition to costs upon the amount claimed in the second cause of action.
    Upon the taxation the defendants read the pleadings in the action and an affidavit. The clerk refused to tax defendants’ costs and an appeal was taken to the special term where the ruling of of the clerk was affirmed. At the same time, defendants’ motion for an extra allowance was denied.
    
      Vanderpoel, Green & Cuming (Henry Thompson, of counsel), for app’lts; M. M. Silliman (Wm. P. Fiero, Of counsel), for resp’t.
   Pratt, J.

—The language of the Code is not entirely clear, and much diversity is found in the decisions to which it has given rise. But the weight of authority seems to be that a defendant does not so “ recover ” as to entitle him to costs unless an affirmative judgment is rendered in his favor.

The special" term adopted that construction as it seems to be supported by most of the decisions.

The order appealed from should be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.  