Stolper v. Barbarita

The question on this appeal is one of the construction of section 1476 of the Civil Practice Act, which reads as follows: ‘ ‘ Where, in an action against two or more defendants, the plaintiff is entitled to costs against one or more, but not against all of them, none of the defendants are entitled to costs, of course. In that case, costs may be awarded in the discretion of the court to any defendant against whom the plaintiff is not entitled to costs, where he did not unite in an answer, and was not united in interest, with a defendant against whom the plaintiff is entitled to costs. ’ ’

In this case plaintiff recovered judgment against one of the defendants but failed against defendants-respondents. All of the defendants had united in an answer but were not united in interest. An original judgment was entered in favor of plaintiff, with costs, -against the defendant as to whom plaintiff was successful, but the judgment in favor of defendants-respondents did not award them costs. Upon their motion the judgment was resettled to award them costs, and plaintiff appeals.

*131Defendants-respondents were not entitled to costs as a matter of course. Whether they were entitled to costs in the discretion of the court depended upon their satisfying the conditions of the statute, which are that they not unite in an answer and be not united in interest with a defendant against whom plaintiff was entitled to costs. They satisfied only one of these requirements, in that they were not united in interest with the defendant against whom plaintiff recovered judgment and costs. They did not, however, satisfy the other requirement of not having united in an answer with such other defendant. The requirement is in the conjunctive and both elements must be satisfied. (See Schmuckler v. Green, 249 App. Div. 342.)

The order appealed from should be reversed and the motion to resettle the original judgment denied, with costs to appellant.

Peck, P. J., Cohn, Callahan, Breitel and Botein, JJ., concur.

Order and resettled judgment unanimously reversed, with $20 costs and disbursements to the appellant, and the motion to resettle the original judgment denied.