§ 8101.Costs in an action

This section replaces CPA § 1470, which set forth those actions in which a plaintiff was entitled to costs as of right upon entry of a judgment in his favor; CPA § 1475, which provided that a defendant was entitled to costs as of right in the specified actions if the plaintiff was not so entitled; CPA § 1477, which provided that in actions not specified, costs were discretionary; and CPA § 1492, which provided that costs in special proceedings were discretionary.

The actions specified in CPA § 1470 are usually thought of as legal actions, in contrast to equitable actions, which are the broad group to which the residuary provision of CPA § 1477 applied. Actually, there were equitable actions included in CPA § 1470, and legal actions in which costs are discretionary.

CPA § 1470 was derived, without substantial change, from a section of the Field Code which included (1) actions involving title to real property, (2) actions to recover a chattel, (3) actions of which a Justice of the Peace expressly had no jurisdiction, and (4) actions for money only where the recovery was more than a specified amount. Laws 1848, c. 379, § 259. These four classes of actions, upon examination, do suggest an intention to award costs as of right in legal actions, but it also seems evident that the right was to be restricted to those legal actions which could not be brought in the Justice Courts. As a by-product of the method of specification used by Field, costs as of right were also awarded in some equitable actions, apparently only because they were specifically excluded from the cognizance of Justices of the Peace. Moreover, actions for money only have been held to include equitable money actions. See, e.g., Murtha v Curley, 92 NY 359 (1883).

To the extent that the purpose of the predecessor of CPA § 1470 was to penalize plaintiffs who could have sought relief in the lower courts, a more recent enactment, CPA § 1474, was sounder. CPA § 1474 also prohibited costs if the recovery was less than a specified amount, but it required a showing that the action could have been brought in the inferior court. See notes to § 8102.

To the extent that CPA § 1470 and its predecessors represented an intention to award costs in legal, as contrasted with equitable actions, it unnecessarily perpetuated the distinction between law and equity purportedly abolished by the Field revision. Moreover, the distinction formerly made between the right to costs in a special proceeding and the right in an action had little utility. Since CPA § 1492 provided that costs in all special proceedings were discretionary, costs were formerly as of right only in those actions listed in CPA § 1470, and they were discretionary in all other actions and special proceedings. Limitations, such as those in CPA §§ 1471 through 1474, have the effect of creating a third class of actions in which costs cannot be awarded, even by discretion; indeed, in the actions covered by CPA § 1472, costs were taxed against the prevailing party.

This section abolishes most of the former distinctions by providing that costs are to be awarded except where otherwise provided by law or by the court. Its major effect is upon those actions in which costs were formerly as of right, where it permits the court to deny costs. This has been the situation with respect to appeals costs since 1943. See introduction to this article; notes to § 8107. As to those actions where costs were formerly discretionary, it codifies the decisional law that costs are to be awarded the prevailing party unless special circumstances warranting denial are shown. See Stevens v Central Nat’l Bank, 168 NY 560, 61 NE 904 (1901); Couch v Millard, 41 Hun 212 (1886). Since under rule 411 a special proceeding results in a “judgment,” this section is applicable to special proceedings as well as actions.

This action is similar to Federal rule 54(d), which was adopted as a substitute for a statutory scheme similar to the former New York one. See Harris v Twentieth Century-Fox Film Corp., 139 F2d 571 (2d Cir 1943). The Federal courts have construed rule 54(d) in much the same way as New York interprets its discretionary provisions, utilizing a rule that the prevailing party is entitled to costs, absent considerations weighty enough to require deprivation. See McKnight v Atkins, 192 F2d 674 (6th Cir 1951); Shima v Brown, 140 F2d 337 (DDC 1943); 6 Moore, Federal Practice par 54.70 (2d ed 1948).

CPA § 1478 provided that where a defendant, who was given notice that no personal claim was made against him in an action affecting specific real or personal property, unreasonably defended costs might have been awarded against him. In view of CPA § 1477, which provided that costs were discretionary except as prescribed in the preceding sections, the value of CPA § 1478 is questionable. To the extent that it applied to an action where costs would otherwise have been of right under CPA § 1470, its discretionary language seems inconsistent with CPA § 1470. With respect to other actions it added nothing to CPA § 1477. Indeed, its negative implication—that costs might not have been awarded unless a notice of no personal claim was served and an unreasonable defense was asserted—seems inconsistent with both CPA § 1470 and CPA § 1477.

CPA § 1478 was derived from §§ 109 and 110 of the Field Code, which provided that in lieu of serving a complaint, a notice of no personal claim could be served with the summons in partition and foreclosure actions, and that if the defendant thereafter unreasonably defended, “he shall pay costs to the plaintiff.” In effect, the section conditionally added two classes of actions to the list in the Field Code of actions in which costs were as of right.

In 1851, the provision was broadened from the two named actions to include any action affecting specific real or personal property. Laws 1851, c. 479, amending Code Proc § 131. Since some of the actions included were also listed as actions in which costs were as of right, it became unclear whether a notice of no personal claim and an unreasonable defense became conditions precedent to mandatory costs in these cases.

In 1877, the situation was further confused when the provision—then § 423 of the Code of Civil Procedure—was changed to its CPA form by replacing the previously mandatory words with language implying discretion. Laws 1877, c. 416 § 1(55) (changing “must be awarded” to “may be awarded”). Moreover, the section’s original orientation, as an adjunct to the provisions relating to service in the chapter on commencement of actions, has been lost by its transfer to the article on costs of the civil practice act.

In view of the confusing nature of CPA § 1478, and that it was patently unnecessary, the section has been omitted.

CPA § 1485 provided that the costs of a trial abided the event of a new trial granted as a result of the failure of the trial court to file its decision within the time required. Since the motion for a new trial on that ground has been deleted from the new CPLR (see notes to § 4213(c)), CPA § 1485 has also been omitted as unnecessary.

CPA § 1479 has also been deleted. It provided that a plaintiff who brought separate actions against co-defendants liable upon a single cause of action might have recovered costs in only one of the actions. It was not applicable, however, where the plaintiff sued all defendants who, with reasonable diligence, could be served. Under this section, the court can deal with the problem more directly by considering whether costs were recovered in such a previous action, in determining whether costs should be denied—for example, it can determine that a plaintiff who only recovered a minimal amount of costs in the prior action because it resulted in a default judgment be denied only that amount of costs. While the same result might have been achieved under the former section, which allowed the plaintiff to elect in which action he should be entitled to costs, it is unclear when the election was to be made, or whether the plaintiff’s failure to tax costs on a judgment in anticipation of a subsequent recovery could have been remedied if no further judgment materialized. The consideration embodied in CPA § 1479 should also be evaluated in the light of §§ 1001, 1002, and 1003. Cf. CPA §§ 193, 212, 1186, 1201.

CPA § 1499 is also deleted. Its provision was unnecessarily limited. There appeared little reason for its restriction to executors and administrators, in their representative capacity, to money actions, or to an award of costs only if a claim was unreasonably refused. Cf. CPA § 1500. This section will permit the court to deny costs in any matter which might have been handled more appropriately and more equitably to all parties in another court or outside of the normal litigation channels.

The omission of CPA § 1499, of the first part of CPA § 1500, and of the specific listing in CPA § 1470, eliminates the difficult problems created by apparent inconsistencies between CPA §§ 1499 and 1500, on the one hand, and subdivision 6 of CPA § 1470, on the other.

This section will also allow a court to deny costs in a situation formerly covered by CPA § 1483. Section 1483 referred to “the final judgment” and thus did not seem to apply to a situation where more than one judgment was entered. In order for there to be a separate judgment, a severance of the action was necessary and CPA § 1480 should have governed, for it purported to cover costs upon severance. CPA § 1480 was ambiguous and misleading, however, as a result of an attempt to broaden it to cover all severances, for it originally applied only to a severance occasioned by the entry of judgment for the plaintiff upon an admitted part of his claim. In the case of severance and recovery of a judgment for the defendant, it has been held that CPA § 1483 controlled and that costs to the defendant depended upon the similarity between the cause of action upon which he recovered and that which was continued. See Luisoni v Barth, 138 NYS2d 65 (Sup Ct 1954). Such a consideration may be employed by the court under this section. The principal impact of CPA § 1483, upon a single judgment which represented recoveries for both parties, has been covered by § 8103.

Where judgment for the plaintiff was entered on the severed portion of an action, CPA § 1480 appeared more meaningful, but it was unclear under the former section whether the plaintiff might have recovered any costs on the judgment for the severed part of the action. If he discontinued, CPA § 1480 provided that costs were to be awarded, an obvious and unnecessary provision. If he continued the action, however, there seemed no reason to deny him costs, providing that he did not get a second bill of costs by recovering on the remainder of the claim. This consideration may also be employed under this section. If the plaintiff fails on the continued action, the defendant will ordinarily be entitled to costs, because the second judgment is entered in his favor. To the extent that the purpose of CPA § 1480 was to insure this result, it is unnecessary.

CPA § 1476 provided that costs must have been denied to a prevailing defendant who was united in interest or united in an answer with a co-defendant against whom the plaintiff prevailed and that they might have been denied to a defendant if his co-defendant was unsuccessful although he was neither united in interest nor in answer with him. The concept of “united in interest” apparently presupposes, however, that the defendants stand or fall together. The unity of answer requirement was also unclear. There seems no good reason, moreover, why a defendant in whose favor a judgment is entered, because he prevailed at the trial or on a motion to dismiss as to himself, should not be compensated for his expense solely because a co-defendant does not succeed. If no separate judgment is entered in his favor, he may still be awarded costs under § 8103 where the cause of action upon which he prevailed is not substantially the same as the one upon which his co-defendant failed. This section permits the court to deny him costs, upon a separate judgment entered in his favor, upon the same consideration.

Because this section provides for costs in all special proceedings, certain provisions of the civil practice act which provided for costs in particular proceedings have been omitted. For example, the first sentence of CPA § 1301 provided that costs in CPA, article 78 proceeding might have been awarded in the discretion of the court in favor of or against either party. The sentence provided that those costs were not to exceed fifty dollars where no trial of an issue of fact was had; the provision is omitted because its substance is covered by the similar provision of this section. The second sentence in CPA § 1301 which provided that a judgment might have been entered for costs is omitted as unnecessary.

The last paragraph of CPA § 1462 provided for costs not exceeding twenty-five dollars upon a motion to vacate an arbitration award. Where such a motion is the first application to the court with respect to the arbitration, § 7502 converts the former motion into a special proceeding; if a special proceeding has already been instituted by a prior application to the court, an application to vacate an award would still be a motion under § 7502. Whether the application is a special proceeding or a motion, the general provisions of this section and §§ 8106, 8201 and 8202 do not substantially differ from the provision of the last paragraph of CPA § 1462, which has therefore been omitted.

Similarly, the provisions of the last two sentences of CPA § 1464 for costs on a judgment upon an arbitration award are covered by this section. Part of CPA § 803, which dealt with costs in a supplementary proceeding, is also covered by this section. See notes to § 8303.

Add, L 1962, ch 308, § 1, eff Sept 1, 1963.