§ 8103.Costs where parties prevail upon separate issues.

This section is derived from CPA § 1483. Like CPA § 1483, this provision permits each party to recover costs against the other, where the issues upon which they prevail are not substantially the same. While CPA § 1483 apparently entitled the parties to costs as of right under such circumstances, it required the court to certify as to the similarity of the claims. See CPA § 1502. It therefore essentially stated a condition under which a defendant might have been permitted to recover costs where the plaintiff recovered judgment. Although CPA § 1483 only applied to cases where the plaintiff’s recovery of judgment entitled him to costs as of right, the court’s discretion to award costs “to any party” in other actions (see CPA § 1477) and in special proceedings (see id. § 1492) would also be based upon the same consideration. It is intended that this section also cover the situation where plaintiff recovers against one defendant but fails to recover against a co-defendant and only one judgment is entered. For this reason, the words “a defendant” are used rather than “the defendant.” Cf. CPA § 1476; see notes to § 8101. Where more than one judgment is entered, § 8101 permits denial of costs to the defendant who recovered, if his cause of action is substantially the same as the one upon which the plaintiff prevailed against his co-defendant. The word “recovers” in the former section, used in connection with the defendant, has been replaced by “prevailed” to include both a successful defense and an affirmative recovery on a smaller counterclaim.

CPA § 1484 also stated a condition under which a party might have recovered costs although the judgment was not in his favor. It was formerly limited to a new action based upon an answer of title in a Justice Court. See Justice Ct Act §§ 4(2), 172– 179; Cf. Dabado v Cartino, 180 Misc 337, 41 NYS2d 794 (Sup Ct 1943); CPA §§ 110, 110-a.

The purpose of CPA § 1484 was to prevent a defendant from putting the plaintiff to the extra expense necessitated by the prosecution of the action at the defendant’s behest in a higher court than that in which it was instituted by the plaintiff. If the plaintiff succeeded in the action, the defendant was subject to the higher costs, but if the plaintiff failed, the provision permitted the court to allow the plaintiff costs notwithstanding, and deny them to the defendant, if prosecution in the inferior court would have been proper. The section, however, did not take into account that the defendant’s answer might have been in good faith, although in error. Moreover, there seems little need to specially provide for this unusual situation. Since § 8101 will permit the court to deny costs to the defendant in such a case, it amply covers the provisions of CPA § 1484 which has therefore been deleted.

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