the character of the action, which cannot be changed by the answer, where the facts alleged in the complaint are equally consistent with one of two or more causes of action, and the plaintiff accepts a judgment which is within the issues and consistent with the case made by the complaint (section 1207, Code Civ. Pro.), he is not in a position to urge that he is entitled to the costs which would have followed had the judgment been in accord with his original intention. This is the view taken by the court in Wilsey v. Rooney, 41 St. Rep. 444; 16 Supp. 471, and is consistent with the policy of the law, which seeks to relieve courts of record of the burden of dealing with actions which may properly be disposed of by the inferior courts. The action, by COSTS IN REPLEVIN,-continued. ing of the section is that the plaintiff is entitled to costs in an action to recover the value of a chattel, except that in an action in which the jury are authorized to find the value of the chattel, that if the value of the chattel and the damages do not exceed fifty dollars, the costs cannot exceed the amount of such value and the damages. On the authority of the case last cited, the court decided, in Rapid Safety Filter Co. v. Wyckoff, 19 Misc. 351; 77 St. Rep. 490; 43 Supp. 490, that the verdict need not fix the value of the chattels, but such value may be shown by affidavit for the purpose of taxing costs; but this decision was overruled on reargument reported in 20 Misc. 429; 79 St. Rep. 1028; 45 Supp. 1028, where it was held that to entitle plaintiff to a full bill of costs he must establish on the trial the fact that the value of the property together with the damages, if any, which shall be awarded to him, amounts to the sum of fifty dollars, and that, on failure to do so, he cannot show such value by affidavits on the taxation of costs. In its opinion the court said: "The decision in Claflin v. Davidson evidently proceeded on a misapprehension, inasmuch as the court there read section 3228 in connection with sections 1726 and 1727, and the latter sections relate in no way to costs in such an action." Where plaintiff recovers a judgment directing a return of the property only, and its value is not fixed, he is not entitled to costs. Lockwood v. Waldorf, 91 Hun, 281; 70 St. Rep. 855; 36 Supp. 199. No costs can be recovered where all claim for damages for the detention of the property is expressly waived and no proof is offered which tends, in any way, to fix its value. Herman v. Girvin, 8 App. Div. 418; 75 St. Rep. 235; 40 Supp. 845. 1900] McLain v. Mathushek Piano Mfg. Co. consent of the plaintiff, having taken the form of one for conversion, and the verdict and judgment entered not being such as are required by sections 1726 and 1730 in actions for the recovery of a chattel, the rule for the assessment of costs laid down in section 3228 of the Code has no application in the present case. The order appealed from should, therefore, be affirmed. See Hammond v. Morgan, 101 N. Y. 179, 185, 186; 4 N. E. 328; Conklin v. McCauley, 41 App. Div. 452, 456; 92 St. Rep. 879; 58 Supp. 879. The order appealed from should be affirmed, with costs. All concur. COSTS IN REPLEVIN,-continued. Unless the value of the chattels is fixed by a judicial determination upon the trial, plaintiff cannot recover costs as of course, and, his testimony alone, as to the value of the property, cannot be deemed a sufficient compliance with the statute. Wolff v. Moses, 26 Misc. 500; 91 St. Rep. 696; 57 Supp. 696. f. Partial recovery by both parties. 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. § 3234, Code of Civil Procedure. Each party is entitled to costs where both parties recover a portion of the property and the value of each portion is assessed at more than fifty dollars. Hull v. Halsted, 1 How. Pr. 174. Where the jury finds the property in the plaintiff as to part of the goods, the value of which is less than fifty dollars, and nominal damages, he is not entitled to recover more costs than damages, although the value of the whole property exceeds fifty dollars. Fogers v. Arnold, 12 Wend. 30. Where a defendant in replevin avows and justifies the taking, and only a part of the property is awarded to him, the value of which is assessed COSTS IN REPLEVIN,-continued. at less than fifty dollars, he is entitled to no more costs than damages. Small v. Bixley, 18 Wend. 514. The case last cited was overruled by the following case in which, as the reason therefor, the court says: "It was there supposed that the right of the defendant to costs, where both parties succeed, turns upon the idea that he stands in the attitude of plaintiff, and hence must succeed in defending an amount of property that would entitle a plaintiff to costs. True, the defendant in replevin is regarded as plaintiff for certain purposes, such as noticing the cause for trial, etc.; but there is no reason for so regarding him on the question of final costs." A defendant is entitled to full costs of an issue found in his favor, where a verdict is rendered giving him a right to have return of part of the property, although its value is assessed at less than fifty dollars, and the other issues are decided against him. Johnson v. Fellows, 6 Hill, 353. Where the jury find the property of a portion of the articles to be in one party and the residue in the other party, and each portion exceeds in value fifty dollars, each party is entitled to recover costs against the other. Seymour v. Billings, 12 Wend. 285. Where the defendant pleads property in the goods, as to a portion of which the issue is found in his favor, and as to another portion the prop erty is found in the plaintiff, of which the value is less than fifty dollars, the defendant is entitled to recover costs. Rogers v. Arnold, 12 Wend. 288n. Where defendant prevails upon the whole record and is entitled to his damages and costs, plaintiff, however, is entitled to recover the costs of the issues of fact found by the jury in his favor. Wright v. Williams, 2 Wend. 632. The seven cases last cited were decided under the provision in the Revised Statutes which is practically the same as the corresponding section of the present code. Under the Code of Procedure which repealed and did not re-enact a provision similar to the one in the Revised Statutes which is contained in the present code, the plaintiff only was entitled to costs where he recovered property exceeding fifty dollars in value, although defendant also recovered property exceeding that value. Stoddard v. Clarke, 9 Abb. N. S. 310. But, in the case of Porter v. Willet, 14 Abb. Pr. 319, which was decided under the Code of Procedure, it was held that each party was entitled to costs against the other where they each recovered a portion of the property assessed at more than fifty dollars. Where, upon the trial of an action of replevin to recover certain articles COSTS IN REPLEVIN,-continued. of clothing, plaintiff recovered judgment for the assessed value of the portion of the clothing sold after a certain date, and defendant recovered a verdict for the assessed value of the portion sold prior to the same date, with damages, each sale constitutes a separate cause of action, and each party is entitled to costs, although the complaint sets forth but a single cause of action. Ackerman v. De Lude, 36 Hun, 44. The case last cited was overruled by the following case on the ground that the complaint must set forth separately two or more causes of action. The defendant is not entitled to costs where the complaint in the action to recover possession of several chattels contains but one count, and the answer sets up several defenses, some covering the whole property, others applying only to a portion, although both parties succeed as to part of the property replevied. Newell Universal Mill Co. v. Muxlow, 115 N. Y. 170; 21 N. E. 1048; 24 St. Rep. 545; 17 Civ. Pro. 238; rev'g 51 Hun, 453; 20 St. Rep. 914; 4 Supp. 197; 16 Civ. Pro. 153. A complaint which alleges in a single count the wrongful taking and detention of certain specified goods and a refusal to deliver them on demand, although such goods were sold to defendant's assignor at different times and delivered at different places, does not set forth two or more causes of action so as to entitle defendant to costs on the recovery by him of part of the property. Ackerman v. O'Gorman, 17 Civ. Pro. 275; 25 St. Rep. 170; 2 Silv. S. Ct. 109; 6 Supp. 825. In an action to recover certain articles of personal property, which the defendant, a sheriff, had levied upon under an execution, where the complaint contains but a single count, and the referee decided that the plaintiff was entitled to recover certain of the articles which had been transferred to him by the debtor's wife, and that the other articles transferred to him by the debtor were the property of the debtor, and that the defendant had acquired a special property therein to the amount of the execution, the plaintiff only is entitled to costs. Kilburn v. Lowe, 37 Hun, 237. In an action to recover possession of goods sold at different times the complaint alleging a cause of action for all the goods contains but a single count and does not entitle defendant to costs, although he recovers a portion of the property. Mertens v. Fitzwater, 53 Hun, 597; 25 St. Rep. 305; 6 Supp. 797; 17 Civ. Pro. 277. Appellate Division. [Oct DONNELLY v. CITY OF NEW YORK. [54 App. Div. 155; 100 St. Rep. 411; 66 Supp. 411.] (Supreme Court, Appellate Division, Second Department. October 26, 1900.) COURT OF APPEALS-JURISDICTION-GROUND FOR APPEAL STATUTE-CONSTRUCTION. Code Civ. Pro. § 191, subd. 2, providing that no appeal shall be taken to the court of appeals from a unanimous ffirmance of a judgment by the appellate division rendered in an action "to recover wages, salary, or compensation for services," except on certain conditions, refers only to cases where the claim for such wages, salary, or compensation arises out of a contract relation, and not where the compensation is determined by statute as an incident to a public office. NOTE. WHEN APPEAL LIES TO THE COURT OF APPEALS. a. Scope of note.-References. b. The statute. c. When appeal matter of right. 1. In general. 2. Final orders and judgments. 4. Certiorari. d. Leave of court. a. Scope of note.-References. An exhaustive note on "What is Appealable to the Court of Appeals Under the New Constitution" was published in 1897 in 3 Ann. Cas. 276-282. The present note covers the period since 1897, and is supplementary to the other note. For note on "Time to Appeal to Court of Appeals," see 7 Ann. Cas. 125130. For note on "Certification of Questions to Court of Appeals," see 7 Ann. Cas. 28-30. For note on "What is Unanimous Decision of Appellate Division," see 7 Ann. Cas. 229-232. |