Krafft agt. Wilson.

their presence. Besides, under the order to show cause, it is asked that the respondent not only make the monthly deductions from the salaries of the three members of the force named therein, but also from the monthly pay otherwise due or payable by him, as treasurer aforesaid, to each and every member of the police force of the police department of the city of New York as such.

Inasmuch as it does not appear that any other members of the police force than those named in the order to show cause have objected to such deductions, the relators are, in my opinion, under the construction which I have given to the act of 1885, entitled to a peremptory mandamus, directing the respondent to make such deductions.

Let an order be entered herein on two days' notice.

CITY COURT OF NEW YORK.

RUDOLPH E. KRAFFT, plaintiff and appellant, agt. H. JOSEPHINE WILSON, impleaded, &c., defendant and respondent.

Costs-Rule as to two or more defendants— Code of Civil Procedure, section 3229.

Where in an action against two or more defendants the plaintiff is entitled to costs against one or more, but not against all of them none of the defendants are entitled to costs as of course.

The provision of section 3229 of the Code of Civil Procedure, that costs may be awarded in such case to a successful defendant in the discretion of the court, applies only where such successful defendant is not united in interest with those unsuccessful, and when he interposes a separate defense by a separate answer. The fact of not being united in interest standing alone is not sufficient; both circumstances must exist before costs can be awarded.

General Term, December, 1885.

APPEAL from an order denying a motion made by the plaintiff to set aside the taxation of costs in favor of the defendant

Krafft agt. Wilson.

D. A. Spellissy, for appellant.

James C. Quinn, for respondent.

MCADAM, C. J.-The action was commenced upon a bank check drawn by "Robert Wilson, trustee," one of the defendants. The co-defendant, H. Josephine Wilson, was made a party on the allegation that Robert Wilson was her trustee, and that in making the check he acted on her behalf and for her benefit. It was neither in law nor in fact the joint check of both defendants, but the individual obligation of Robert Wilson, the term "trustee" being merely descriptio persona, the cestui que trust not being in any manner liable upon it.

Upon the trial the plaintiff recovered a verdict against Robert Wilson individually, but as to H. Josephine Wilson the cestui que trust, the complaint was dismissed, "with costs." The plaintiff entered judgment on the verdict against Robert Wilson, "with costs," and the defendant, H. Josephine Wilson, had her costs taxed by the clerk, and from an order denying a motion to set aside the taxation the present appeal is taken. The question to be considered on this appeal is as to the power of the trial judge to allow costs to the defendant, who was successful at the trial, because if the court had no discretionary power in the premises the award of costs and the taxation which followed were all without authority, and the application to set aside the taxation ought to have been granted. By the common law costs were not awardable and were recoverable only by action (Downing agt. Marshall, 37 N. Y., 380). The power to award costs emanates from the statute, and authority for awarding them must be found in the Code, or they cannot be awarded.

The rule that where the plaintiff does not succeed as to costs they go, as, of course, to the defendant, has its exceptions, one of which will be found in section 3229 of the Code, which, among other things, provides that in "an action against two or more defendants, wherein the plaintiff is entitled to costs against one or more, but not against all of them, none of the defendants

Krafft agt. Wilson.

are entitled to costs, of course. In that case costs may be awarded, in the discretion of the court, to any defendant against whom the plaintiff is not entitled to costs, where he did not unite in an answer and was not united in interest with a defendant against whom the plaintiff is entitled to costs."

The defendant, H. Josephine Wilson, was not united in interest with Robert Wilson, and is entitled to costs, unless the circumstance that she united with her co-defendant in an answer to the complaint, instead of interposing a separate answer thereto, prevents the court from making the discretionary award of costs contemplated by the section cited. Section 3229 (supra) is taken from sections 305 and 306 of the former Code of Procedure, which contained similar language. These sections were. considered by the court of appeals in Allis agt. Wheeler (56 N. Y., 50), which held that the right to costs in such cases as the present was confined to those expressly mentioned in the section, i e., where the successful defendant is not united in interest with those against whom the plaintiff recovers, and where they make separate defenses by separate answers. That the fact of not being united in interest standing alone is not sufficient; a separate defense by a separate answer must have been interposed as well, as both of these circumstances must exist before the costs can be awarded.

To the same effect in Park agt. Spaulding (10 Hun, 128), and the codifiers say that they intended section 3229 (supra), as adopted by the legislature, to be in accordance with the law as laid down in Allis agt. Wheeler (supra), and they have, in our judgment, given legal effect to their intention. It follows from this interpretation of section 3229 (supra) that the defendant, H. Josephine Wilson, though successful in her defense, is not entitled to costs, on the sole ground that she failed to interpose a separate answer, that the court had no power to award her costs and that the subsequent taxation thereof was unauthorized and should have been set aside upon the motion made for that purpose.

The order appealed from must, therefore, be reversed, but as

Matter of Derickson Minors.

the question of interpretation under the present Code is apparently new, the reversal will be without costs (Code, sec. 3229).

SURROGATE'S COURT.

In the Matter of DERICKSON Minors.

Guardian — Authority of the surrogate to allow access to the infant-Code of Civil Procedure, section 2821.

Upon an application for an appointment of a guardian of an infant, the surrogate has authority to direct that access to the infant shall be allowed by the guardian when appointed, to such persons as the Surrogate may designate.

New York county, January, 1886.

ROLLINS, S-The grandmother of these infants, with whom they are now residing, has applied to be appointed their guardian. Their father is dead. Their mother is not herself an applicant for letters of guardianship, but opposes the appointment of the grandmother, except upon the condition that she herself shall be afforded an opportunity from time to time of visiting her children. To this restriction the petitioner refuses her assent, and she disputes the authority of the surrogate to impose any such condition upon the issuance of letters.

The power of the court of chancery to award the custody of an infant to one person and to allow access to another under such limitations as it chose to impose, has been often asserted (Macpherson on Infants, 120-1; Ex parte Ralston, 1 R. M. Charlt, 119). "The court," says Schouler (Dom. Rel., sec. 332), "will judge as to what the interests of the child require, according to the circumstances of each case, and will make orders accordingly, both as to the actual custody and as to the persons who may have access to the child."

The authority conferred upon surrogates by section 2821 of

Couch agt. Millard et al.

the Code of Civil Procedure is in this regard as extensive as that which was formerly exercisable by the chancellor.

I am clear that in a proper case I may give direction as to

access.

The petitioner's counsel claims that such direction should not here be given, because of the alleged depraved character of the children's mother.

This presents an issue of fact which must go to a reference. While such reference is pending, the children may remain in charge of their grandmother.

SUPREME COURT.

DANIEL L. COUCH, as assignee, &c., agt. GEORGE M. MILLARD et al.

Costs-In equity action—In the discretion of referee - Special term no power to overturn his conclusions-Code of Civil Procedure, sections 3238-3253Additional allowance-When should be made—Rules applicable to.

In an action brought by an assignee to set aside a chattel mortgage given by a judgment debtor to defendants as security for $26,000 of acceptances made by defendants for the mortgagors-said chattel mortgage covering a large quantity of lumber, machinery, &c.; the assignee seeking to compel defendants to account to him for the property taken by them under said mortgage, a reference being had, the costs of the action are in the discretion of the referee, and after the exercise of such discretion it is not within the province or power of the special term to overhaul and overturn his conclusions.

His decision as to costs cannot be disturbed except by an appellate court having power to review the case upon its merits.

Where an assignee assaulted a security held by defendants to indemnify them against accommodation liabilities, assumed for the assignors and sought to strike it down as fraudulent and void, and failed in the principal purpose of his bill and was charged with costs payable "first out of the fund ;" on motion for an extra allowance on the part of defendants, on the ground that the case was difficult and extraordinary:

Held, that the principles stated in Burke agt. Candee (63 Barb., 552) are applicable to this case and that an extra allowance should be made.