Blake v. Michigan Southern & Northern Indiana Railroad , 17 How. Pr. 228 ( 1858 )

By the court—Hogeboom, Justice.

The order made at special term should he affirmed. There is. but a single suit pending, and the costs of only a single suit can be included in the judgment. It is not the case of several parties defending by separate attorneys and having separate interests, in which event separate bills of costs are sometimes allowed, (Code, § 306), Put one plaintiff against one defendant, in a single action. In such case I do not think the allowances authorized by section 307 can be repeated. That section makes a specific allowance for particular services, which cannot be doubled or trebled, any more than they can be in any other way increased.

The other suits are discontinued, and only the consolidated action remains. I know of no principle by which costs, in actions discontinued, can be included in another action, even though it embraces the causes of action in the first. Provision for such costs must he made in the discontinued actions before they finally cease to exist.

Again, the object of consolidation is to curtail the costs, and it is commonly, though not always-, ordered on account of a supposed intention unnecessarily to accumulate costs in the first instance. It is, therefore, ordinarily a judicial determination that separate suits were originally instituted, without legal necessity, for an improper purpose. If special circumstances exist justifying a different conclusion, it is always competent for the court to order the consolidation on terms, one of which may be, the saving to the successful party of the costs already incurred in the suits which are to be dropped. And, I think, the party loses his costs as against his adversary, unless provision is thus made for them in the order of consolidation, at least, I do not think he can tax them on the judgment in the consolidated action.

If any of the disputed items were to be allowed, I think the two extra allowances of $60 each should not be, but it does not seem to me that any of them can be properly included in this action.

The order made at special term should be affirmed, with $10 costs.