Williams v. Blumer ( 1874 )

Hardin, J.

The question presented arises under section 306 of the Code, and has been passed upon several times since the amendment of that' section, in 1851. The eases are conclusively to the effect that an award should be made in respect to costs, when there are several defendants not united in interest, and making separate defenses by separate answers. It is clear these defendants were not united in interest, and that they proved and made separate defenses.

In Bank of Attica agt. Wolf decided in 1859, by the general term of the eighth district, and reported 18 Howard, 103, it was held that a judgment, entered without an award, when separate answers by defendants not united in interest, was irregular and the taxation set aside.

The learned judge cites, from 1 Bosworth, Butler agt. Morris, and other cases supporting the conclusion reached.

That case was cited and followed in Zink agt. Attenbury (18 How., 108), at general term, in 1859.

■ In the same year the same question was examined by Hogeboom, J., sitting in the Albany general term, and a similar result reached by him, and decided at said term, and reported 18 Howard, 397. In N. H. R. R. Co. agt. Schuyler an award was made, and then the bills were taxed and approved, April, 1865 (29 How., 89).

These cases were examined in Lindsley agt. Diefendorf, by Hardin, J., and followed (43 How., 91).

This question was incidentally alluded to in Hayes agt. Robertson. (15 Abb. [N. S.], 194), by Monell-, J., and he assumes there is • a conflict ,• but the cases he refers to as adverse to those already cited, arose before the amendment, in 1851, of section 306 of the Code. The taxation of two bills of costs by the defendants without any award of costs by the court was irregular, and must be set aside, without prejudice to the defendants’ right to move for an award of costs to either or both.

The motion is granted with ten dollars costs.