Newell Universal Mill Co. v. Muxlow

• Decision Date: 25 June 1889
• Citation: 21 N.E. 1048,115 N.Y. 170
• Parties: NEWELL UNIVERSAL MILL CO. v. MUXLOW et al.
• Court: New York Court of Appeals Court of Appeals

115 N.Y. 170

21 N.E. 1048

NEWELL UNIVERSAL MILL CO.

v.MUXLOW et al.¹

Court of Appeals of New York.

June 25, 1889.

Appeal from supreme court, general term, First department.

Action by the Newell Universal Mill Company against Jane B. Muxlow and others, to recover possession of certain chattels situated on premises owned by the defendant Muxlow, and which were occupied by a tenant of the latter. From an order granting a motion to tax costs in favor of defendant, plaintiff appeals. Code Civil Proc. § 1728, provides that, ‘where the action is brought to recover two or more chattels, the verdict, report, or decision may award to one party one or more distinct chattels, which can be identified and set apart from the others, and the residue to the other party; and, if necessary, the complaint must be amended so as to conform thereto. The final judgment rendered thereupon must award to each party the same relief, with respect to the finding in his favor, as if separate judgments were rendered, except that, where each party is entitled to an absolute award of a sum of money against the other, the smaller sum must be deducted from the greater, and the balance only must be awarded.’

Aeorge C. Holt and Geo. P. Gordel, for appellant.

Edward, P. Wilder, for respondent.

RUGER, C. J.

This case presents the question of the right of a defendant to costs in an action for chattels, when both parties succeed as to a part of the property replevied. The complaint contained but one count, and one cause of action, and alleged the ownership by the plaintiff of several articles of property, and the possession and wrongful detention thereof by the defendant, and demanded judgment for the recovery of the possession of such property. The defendant Jane B. Muxlow alone defended on the merits, and alleged several defenses to the action; some covering the whole property, and others applying to a portion only thereof. Upon a trial the plaintiff obtained a verdict for a portion of the property claimed, and the defendant for the remainder. Upon this state of facts the clerk refused to tax costs in favor of the defendant, and that refusal was sustained by the special term. On appeal, however, to the general term, the decision of the special term was reversed, and the motion for costs to defendant granted. We think the general term erred in its disposition of the case. The right to costs in such cases is regulated exclusively by the provisions of section 3234 of the Code of Civil Procedure, which reads as follows: ‘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 these 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.’ The language of this section refers to actions to recover chattels, and seems to be plain and unambiguous. It declares explicitly that the right of the defendant to costs depends upon the condition that the plaintiff has by his complaint separately set forth two or more causes of action upon which issues of fact have been joined, and, even when such is the case, the defendant is not entitled to costs, when it is certified that the substantial cause of action was the same upon each issue. We are unable to concur in the course of reasoning adopted by the court below, by which, in analogy to the rules pertainingto the former action of replevin, a claim of title by the defendant must be considered the statement of a cause of action in separate counts, bringing him within the provisions of section 3234, entitling him to costs. The action of replevin was abolished by the Code of Procedure, and its peculiar and distinctive features suspended by the rules of practice therein provided for the conduct of actions of claim and delivery. Analogies drawn from the characteristics of the former action of replevin are not sufficient to overthrow or vary the clear and explicit language contained in section 3234. Kilburn v. Lowe, 37 Hun, 237. The contention of the respondent would require a reconstruction of this section by striking out the words, ‘wherein the complaint sets forth separately two or more causes of action,’ and inserting in place thereof the words, ‘that in all actions to recover two or more chattels each chattel shall constitute a separate cause of action, and an issue thereon raised either by answer or proof shall create a separate statement of a cause of action.’ Such a change in the language of an unambiguous statute is not justified by any rule of construction, and is authorized only by an exercise of legislative...