Opinion
July 31, 1959
McNulty, Gellman Kellick for plaintiff.
Merino Vitch for Frank Gugino, defendant.
Section 1476 of the Civil Practice Act provides in substance that when there are two defendants and plaintiff recovers judgment against one but is unsuccessful as to the other defendant, the latter may, in the discretion of the court, recover costs against the plaintiff provided that such defendant was not united in pleading or in interest with the defeated defendant.
In the instant case plaintiff sued the defendants for the price of merchandise on the ground that the defendants were estopped to deny that they were liable as if partners. (Partnership Law, § 27.) Defendant Bianco defaulted and plaintiff obtained judgment against him. Defendant Gugino obtained a jury verdict of no cause of action in his favor and now moves the court for costs against plaintiff pursuant to said section of the Civil Practice Act.
The defendants did not unite in pleading, nor were they united in interest. It appeared that the defendants had been partners but the relationship had terminated prior to the transaction in suit. The allegation that this defendant was estopped to deny partnership (which allegation the jury did not accept) does not show a union of interests. In Schmuckler v. Green ( 249 App. Div. 342) plaintiff sued three defendants as partners. He discontinued against one of them because he was not prepared to prove that she was a member of the partnership. The court held that that defendant was not united in interest with the other two defendants.
This court has the power under the said statute to award costs to the defendant Gugino and, under the circumstances, makes such award. ( Orton Co. v. Earl, 137 Misc. 322.)