Cooper v. Schultz , 33 How. Pr. 5 ( 1867 )

Cardozo, J.

My conclusions in this matter are,— First. That the Metropolitan Board of Health—a body created by the act of February 26th, 1866—is the only defendant in this case, and that its component parts cannot be separated in defending a suit, so as to authorize the allowance of more than one bill of costs.

Second. That double costs cannot be recovered; because,

1st. This suit was not brought for, or concerning any act done by a public officer by virtue of his office; nor for or concerning the omission by a public officer or person, to do any act which it was his official duty to perform. The action was brought to restrain the defendant from doing that which the plaintiffs claimed it ought not to be allowed to do.

2d. The statute giving double costs, has no application to suits in equity.

The ruling of the clerk should be reversed.