Kilburn v. Lowe
New York Supreme Court
Appeal from, an order, made at a Special Term, granting a motion for a retaxation of costs and striking from the judgment those awarded to the defendant. The defendant, as sheriff, held an execution against one Samuel aimer, and December 5, 1878, levied upon several articles of personal property, to recover which the plaintiff brought this action of replevin, claiming title to all of the articles. The complaint contains but a single count or cause of action.
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Appeal from, an order, made at a Special Term, granting a motion for a retaxation of costs and striking from the judgment those awarded to the defendant. The defendant, as sheriff, held an execution against one Samuel aimer, and December 5, 1878, levied upon several articles of personal property, to recover which the plaintiff brought this action of replevin, claiming title to all of the articles. The complaint contains but a single count or cause of action. The value of the articles are not separately stated in the complaint, but it is alleged that all of the articles were, at the date of…
1Opinion of the Court
Follett, J.:
The defendant claims that he is entitled to costs under section 3234 of the Code of Civil Procedure, which provides: In an action specified in section 3228 of this act, wherein the complaint sets forth separately two or more causes of action upon which issues of fact are joined, if the plaintiff recovers upon one or more of the issues, and the defendant upon the other or others, each party is entitled to costs against the adverse 'party, unless it is certified that the substantial cause of action was the same upon each issue, in which case the plaintiff only is entitled to costs.”
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2Cases cited4 opinions
- Persse v. WatrousSupreme Court of Connecticut · 1861
- Watson v. . GardinerNew York Court of Appeals · 1872
- Wright v. WilliamsNew York Supreme Court · 1829
- People ex rel. Lownds v. New-York Common PleasNew York Supreme Court · 1829