Ackerman v. O'Gorman , 25 N.Y. St. Rep. 170 ( 1889 )

Merwin, J.

Our decision in this case must be controlled by the decision of the court of appeals in Newell Mill Co. v. Muxlow, 21 N. E. Rep. 1048, (decided June 25, 1889.) In that case, at general term, (4 N. Y. Supp. 197,) it was held that in an action of replevin, when the plaintiff recovered a portion of the chattels sued for and the defendant the rest, the defendant was entitled to costs; following the case of Ackerman v. De Lude, 36 Hun, 44. The court of appeals reversed the general term, holding that the right to costs in such cases is regulated exclusively by the provisions of section 3234 of the Code, which explicitly declares that the right of the defendant to costs depends upon the condition that the plaintiff has by his complaint separately set forth two or more causes of action upon which issues of fact have been joined; that the rules on this subject pertaining to the former action of replevin do-not apply; and that section 1728 of the Code has no bearing on the subject. The remedy of the defendant, it is said, is through an offer of judgment. The court adopted the views expressed by the supreme court in the case of Kilburn v. Lowe, 37 Hun, 237. In the present case the complaint did not set forth two or more causes of action. In form it was quite similar to the complaint in the Newell Mill Co. Case. It follows that the order appealed from must be reversed, with $10 costs and disbursements, and the motion of the defendant O’Gorman for costs denied. All concur.