Green a. The Mayor, &c., of the City of New York.

furnished by the comptroller of the city of New York, as required by ordinance of May 30, 1849. The defendants do not aver that they have no property out of which the plaintiff's claim could be made, but, reposing upon the disabilities created by the statutes mentioned, say that they have no money in the treasury out of which they are authorized to pay. They do not allege that the county and city contingencies are either exhausted or will be required for purposes other than salaries, but they assume that the sum of $412,500 levied for salaries, and which would be required for that purpose without reference to the increase of the salaries of the justices, is the only fund appropriated that can be touched to pay the plaintiff's claim. We have seen that the tax-bill of 1857 appropriates the sum of $3,612,682 to the payment of certain sums estimated to be necessary for certain purposes, and also for such other expenses as the defendants may be put to by law. And we have also seen that the increased salary of the plaintiff was an expense to which the defendants were put to by law. Can there be a doubt that the act of the Legislature increasing the plaintiff's salary is an appropriation of the defendants' funds for that purpose; or that the defendants, under the general power to pay "such other expenses as they may be put to by law," would have the power, out of any contingent fund or any surplus over the estimates, to pay the plaintiff? I think, clearly not; and that there is no such contingent fund, and that there was or would be no such surplus, does not appear. It is my opinion, for these reasons, that the averment of the defendants, that they have no fund out of which they are authorized to pay the plaintiff, is not sustained; and that the judgment on that ground, as well as upon the question first considered, should be affirmed.

Sherman a. Fream.

SHERMAN a. FREAM.

Supreme Court, First District; Special Term, November, 1858.

PARTIES.-AMENDMENT.

In an action against three defendants for a wrong, one of the defendants died pending the action, and a discontinuance was entered as against another. Judgment for the plaintiff having been given, the remaining defendant moved to vacate it for irregularity, and the plaintiff asked to have it amended to stand against the remaining defendant alone.

Held, that the amendment should be granted. The power of amendment under the Code, either before or after judgment, by adding or striking out the names of parties, is comprehensive, and includes almost all cases which can arise and call for the interposition of the court.

Motion to vacate judgment.

The facts are stated in the opinion.

INGRAHAM, J.-The plaintiff having entered on the record a suggestion of the death of one of the defendants, and a discontinuance as to another, claims to hold the judgment as to the third defendant.

The defendant moves to set aside the judgment for irregularity.

Whether it was necessary to bring in the representatives of the deceased defendant, or not, depends on the nature of the action. If it was for a joint contract, it was necessary. If it was for a tort, whether joint or several, it was not necessary.

The action was against the defendants, as owners or charterers of a steamboat, to recover damages occasioned by their servants in running down a sloop.

I am utterly at a loss to see in what respect the action is founded on a contract. The defendants never contracted that they would not run down the sloop; and it is for that act that they are sued. The action under the old system would have been case, and not assumpsit.

The defendant's counsel appears to entertain the opinion that

VOL VIII.-3

Sherman a. Fream.

because the defendant became liable to answer for the act of the persons in the steamboat, that therefore the action was in contract. But that is not so. The contract of chartering only made the defendants the owners, but did not make a contract between plaintiff and defendants. It no more entered into the nature of the action, than it would if the defendants had become the owners by purchase.

It was only evidence to show that the defendants by the charter party had, for the time being, become the owners, and responsible for damage occasioned by the negligence of their

servants.

All actions for wrongs, whether a trespass or other cause, coming within the general term of torts, may be sued jointly or severally; and in the case of a joint wrong, all or any of the parties may be sued. (Graham's Pr., 92; 1 Johns. R., 230.)

The power of amendment under the Code, either before or after judgment, by adding or striking out the names of parties, is so comprehensive as to cover almost all cases which can arise and call for the interposition of the court.

In the present case, there is no good reason why these amendments should not be allowed. The objection at best is only technical. The defendant does not pretend that he has sustained any injury by having the names of the other defendants retained during the trial. His liability must have been established by evidence other than that charging the other defendants; and as the liability may be enforced against him either jointly with others or severally, the case is one of those which it was intended by the framers of the Code should be corrected by amendment.

In regard to the objections as to the order to hear the excep tions at the general term, I think the order was correct; and besides, it is not stated in the notice of motion as an irregu larity.

The motion is denied, without costs.

Landsberger a. The Magnetic Telegraph Company.

LANDSBERGER a. THE MAGNETIC TELEGRAPH COMPANY.

Supreme Court, First District; Special Term, November, 1858.

COSTS.-RECOVERY OF LESS THAN $50.

In cases where the plaintiff on a recovery of less than fifty dollars is, under section 304 of the Code, precluded from recovering costs, the defendant is entitled to costs of course.

The ease of Kalt a. Lignot is an authority to the contrary, only in case the plaintiff's recovery was reduced to less than fifty dollars by a counter-claim established by the defendant.*

a.

CRANE & HOLCOMB.-(New York Common Pleas; Special Term, May, 1858.)— This case came up on a motion to vacate a judgment for costs entered in favor of the defendant.

HILTON, J.-The plaintiff sued as indorser and holder of a promissory note made by the defendant.

The answer set up a counter-claim against the payee, while he was holder of the note, and alleged that it came to the plaintiff's possession after maturity, and subject thereto.

On the trial before the referee, the greater part of the counter-claim was allowed, and the plaintiff recovered but $26.34.

The report awarding this sum having been taken up by the defendant and filed, the clerk adjusted the defendant's costs at $121.15, and after deducting the sum found due the plaintiff, judgment was entered against him for the balance of $94.27 in favor of the defendant.

The plaintiff moves to vacate and set aside this judgment, upon the ground that he was the prevailing party at the trial, and therefore no costs on judgment in the action can be recovered or entered against him.

In support of this view, he refers to the decision in Kalt a. Lignot (3 Abbotts' Pr. R., 190), which certainly goes to the extent of declaring, in a case similar to this, that as the defendant was not the prevailing party within the meaning of section 303 of the Code, he therefore could not recover costs.

Although the opinions of the learned judges in the case cited are entitled to great respect and consideration, yet after a careful perusal of sections 303, 304, and 305 of the Code, I cannot agree with them in the views expressed in the decision referred to.

Section 303, after repealing all statutes establishing or regulating costs or fees of attorneys and counsel in civil actions, declares that there may be allowed to the prevailing party upon the judgment certain sums by way of indemnity for his expenses in the action. In no proper sense can language of this kind be said to control the positive and mandatory character of the two following sections:

Landsberger a. The Magnetic Telegraph Company.

Question of costs.

INGRAHAM, J.-The plaintiff recovered in this action $16.09. The defendant claims to be entitled to costs under section 305 of the Code.

By section 304, it is clear that the plaintiff is not entitled to recover costs; and by section 305, the defendant is entitled to costs of course-unless the plaintiff is, under, the previous section.

I should have no difficulty in applying this rule to the present case, were it not for the decision of the general term in Kalt a. Lignot (3 Abbotts' Pr. R., 190), in which case it was held that the defendant was not entitled to costs in a case where the plaintiff recovered less than $50, if he reduced the amount of the plaintiff's recovery below that amount by a counter-claim.

Without any interference with that decision, which is not in accordance with decisions on that point in other districts, I am authorized by Justice Clerke to say, that the principle of that decision was not intended to be applied to any cases in which there was no counter-claim set up in the answer.

In the present case, the answer contains no counter-claim, and the plaintiffs only recover the damages, amounting to $16.09. I think there is no doubt but that the defendant is entitled to costs.

Section 303 provides that costs may be given upon the judg

ment.

Section 304 says that costs shall be allowed to the plaintiff of course, in certain cases.

Section 304 says: "Costs shall be allowed of course to the plaintiff upon a re covery in the following cases:"

Subdivision 4: "In actions for the recovery of money, where the plaintiff shall recover fifty dollars or more.'

999

The plaintiff's right to "costs of course" is not dependent merely upon his being the prevailing party, but rests entirely upon the fact, whether, in an action falling within the subdivision referred to, he recovers "fifty dollars or more."

In this, the recovery being under $50, it is very clear that the plaintiff is not entitled to costs; and as section 305 provides that "costs shall be allowed of course to the defendant in the actions mentioned in the last section, unless the plaintiff is entitled to costs therein," it seems to me equally clear that the judgment in this action, in favor of the defendant, was properly entered, and the motion to vacate it must be denied.