Opinion
November 14, 1917.
James Farrell, for the appellant.
Thomas S. Fagan, for the respondent.
This action was brought to recover damages for malicious prosecution. All of the defendants appeared by the same attorney and united in an answer. At the trial a verdict was rendered in favor of the defendant Freeman H. Munson, but the jury were unable to agree upon a verdict as to the other defendants. Judgment was entered dismissing the complaint on the merits as to that defendant and a full bill of costs was taxed against the plaintiff and included in the judgment. (See Reade v. Halpin, 180 App. Div. 157.)
The rule seems to be well settled that where the cause of action set out in the complaint is joint and several and the defendants have answered jointly only one judgment may be entered in an action at law. In such a case a defendant's right to costs is regulated by section 3229 of the Code of Civil Procedure. By the express provisions of that section if the plaintiff ultimately succeeds in the action against one or more defendants, but not against all of them, none of the defendants are entitled to costs as a matter of course.
Our attention has not been called to any authority for the contention that the verdict of a jury in favor of the defendant, in an action like the present, constituted a severance of the action. We are, therefore, of the opinion that the plaintiff is entitled to have the defendants' costs retaxed, and disallowed and the judgment modified by striking therefrom the award of costs against the plaintiff.
Order modified by striking therefrom the award of costs against the plaintiff, and as modified unanimously affirmed, with ten dollars costs and disbursements.