#### Charles Churchill et al., Respondents, *v.*Theodore Wagner et al., Appellants.

(City Court of New York, General Term,

May, 1898.)

Costs, where the plaintiff is entitled to costs against one of several defendants but not against all — Code Civ. Pro., § 3239 — Negligence as a question of fact.

An action for alleged negligence in blasting rock, which damaged the plaintiffs, was brought to enforce the alleged joint and! several *596liability of the defendants, who were a contractor and his subcontractor; and no relief was sought against one of them which was not claimed against the other. Both appeared by the same attorney and served joint answers, each of which was (verified by both. A verdict was rendered in favor of the contractor and against the subcontractor, and thereupon the contractor entered a judgment for' costs against the plaintiffs.

Held, that-the true intent and meaning of section 3-229 of the Code . of Civil Procedure was that, if one defendant united in an answer with his co-defendant, or was united with him (in interest, he could not recover costs, although no judgment was. recovered against him, and that consequently the contractor was not entitled to costs.

That, where the evidence upon a pure question of negligence was conflicting, the decision of the jury must ordinarily be final. ■

Appeal from a judgment of dismissal in favor of defendants also appeal fróm a-judgment in favor of plaintiff, entered upon a verdict,

August P. Wagener, for appellants.

Eugene R. Darling, for respondents.

Conlan, J.

This case comes before us upon a cross-appeal, thq plaintiffs appealing from a judgment of dismissal as to- the defendant Wagner, and the defendant Lubecke appealing from a judgment against him, entered upon a verdict in favor of the plaintiffs. .

The *gravamen*of the complaint is negligence of the defendants in blasting rock upon lands adjoining those of the plaintiffs and for. damages claimed as a.consequence thereof.

The defendant Wagner, a ¡contractor and builder, entered into a contract to erect a building upon lands adjoining those of the plaintiffs on Washington avenue, New York city, and he sublet that portion of 'the contract which called for blasting rock and excavating for the basement or cellar to the defendant Lubecke, and it is claimed that in consequence of this subletting of the contract, Wagnér was relieved, of liability for the. injuries inflicted, and the judgment in his favor proceeded on this theory of the case.

There was included in this judgment, costs to the 'amount of $108.68, and it is the contention of the plaintiffs’ counsel that this-award of costs is erroneous.

The' defendants appeared by the same attorney and served joint answers.

*597Each was verified by both defendants and w¡a are of the opinion that section 3229 of the C'ode is an authority for this interpretation.

The provisions of that section touching the precise point here are that where the plaintiff is entitled to costs against one or more.defendants, but not against all of them, none of the defendants 'are entitled to costs.

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 the answer, and was not united in interest, with the defendant, against whom the plaintiff is entitled to costs.

The provisions of the old Code were to like effect. The action is against both defendants upon their joint and several liability and no other relief is sought against one than is claimed -against the other.

Negligence charged was the negligence, of both, and only because of the subletting to the defendant Lubecke can it be said that Wagner was not liable.

We think the true intent and meaning of the. section quoted is that if one defendant unites in the answer with his codefendant or is united in interest, he cannot have costs in his favor on failure to recover a judgment against him, and so the authorities appear to decide.

It is distinctly held in Frazer v. Hunt, 18 Week. Dig. 390, by the Supreme Court, General Term, in this department, that the costs as to a successful defendant are made discretionary with the court when such successful defendant does not unite in the answer and is not united in interest, and in that case, because the defendant united in the same answer, it was held that .the one having the judgment in his favor could not recover costs.

■ To the same effect was the case of Allis v. Wheeler, 56 N. Y. 50, and Sawyer v. Thurber, 14 Civ. Pro. 204.

We are, therefore, of the opinion that the judgment against the plaintiffs and in favor of the defendant should be modified or amended by striking out all provisions for the recovery of costs, so that the same may be a judgment in favor of the defendant Wagner, but without Costs against the plaintiffs or either of them.

Proceeding now as to remaining appeal by the defendant Lubecke-from the judgment entered against him upon a-verdict, we are of the opinion that nothing appears in the record as .a- reason for disturbing the finding of the verdict. The question was one *598of negligence and it had no other element- in it, and it was. submitted to the jury upon all the evidence in the case, and no exception was taken to any portion of the charge.

• Ijl the recent case of Kenney v. Rhinelander, decided by the Appellate 'Division in the first department, and reported in- 28 App. Div. 246, the court said upon the question of negligence and its. submission: “ The justibe presiding at the trial could not have done otherwise than submit the issue of the defendant’s negligence to the jury upon that conflicting evidence. It came down to á question of credibility, and although we might have been better- satisfied were the verdict the other way, we have ho right, upon such a record as this to substitute our judgment for the judgment of the jury.”

It has often be.en said upon such conflicts of evidence as are presented, that an appellate court will not interfere with the verdict unless it plainly appears that it was the result 'of prejudice or clear misunderstanding of the facts, and the court said in conclusion, that to interfere with the verdict rendered, would be to usurp the functions of the jury. .

We think that rule well applies to. the case at bar so far as the judgment in favor of the plaintiffs is concerned.

These reasons lead us to the conclusion that the judgment against Lubecke should be affirmed.

Fitzsimons, Oh. J., concurs.

Judgment affirmed, with costs.