#### The Newell Universal Mill Company, App’lt, *v.*Jane B. Muxlow, Resp't.1

*(Court of Appeals,*

*Filed June 25, 1889.)*

1. Costs— Replevin — Right op dependant to — Code Civil Pro., 88 3338, 3334.

The right of a defendant to costs in an action to recover a chattel as specified in Code Civil Procedure, § 3338, when both parties succeed as to a part of the property replevied, is regulated by section 3334, which declares his right to depend upon the condition that the plaintiff has by his complaint, separately set forth two or more causes of action, upon which issues of fact have been joined; and even when such is the case, the defendant is not entitled to costs when it is certified that the substantial cause of action is the same upon each issue.

*2.*Same—Rules pertaining to action op replevin not applicable— Code Civil Procedure, § 8334.

The action of replevin was abolished by the Code of Procedure, and its peculiar and distinctive features suspended by the rules of practice provided for the conduct of actions for claims and delivery, so that analogies *546drawn from the characteristics of the former action of replevin are not sufficient to overthrow or vary section 3334 of the Code Civil Procedure.

3. Same—Code Civil Pito., § 1728—Construction.

Section 1728 of the Code Civil Procedure has no hearing upon the question of costs.

Appeal from judgment of the supreme court, general term, first department, reversing an order denying a motion to direct the clerk to tax costs in favor of defendant.

*George G. Holt*and *George P. Gordell,*for app’lt; *Edward P.*Wilder, for resp’t.

1

 Reversing 30 N. Y. State Rep., 914.

Rttger, Oh. J.

This case presents the question of the right of a defendant to costs in an action for chattels, when both parties succceed as to a part of the property replevied. The complaint contained but one count and one cause of action, and alleged the ownership by the plaintiff of several articles of property and the possession and wrongful detention thereof by the defendant, and demanded judgment for the recovery of possession of such property. The defendant, Jane B. Muxlow, alone defended on the merits, and alleged several defenses to the action; some covering the whole property and others applying to a portion only thereof.

Upon a trial, the plaintiff obtained a verdict for a portion of the property claimed, and the defendant for the remainder Upon this state of facts, the clerk refused to tax costs in favor of the defendant and that refusal was sustained by the special term. On appeal, however, to the general term, the decision of the special term was reversed and the motion for costs • to defendant granted. We think the general term erred in its disposition of the case. The right to costs in such cases is regulated exclusively by the provisions of section 3234 of the Code of Civil Procedure, which reads as follows:

“ In an action specified in section 3228 of this act, wherein the complaint sets forth separately two or more causes of action upon which issues of fact are joined, if the plaintiff recovers upon one or more of the causes of action and the defendant upon the other or others, each party is entitled to costs against the adverse party, unless it is certified that the substantial cause of action was the same upon each issue, in which case plaintiff only is entitled to costs.”

The language of this section refers to actions to recover chattels, and seems to be plain and unambiguous. It declares explicitly that the right of the defendant to costs depends upon the condition that the plaintiff has by his complaint, separately set forth two or more causes of action upon which issues of fact have been joinéd, and, even when such is the case, the defendant is not entitled to costs when it is certified that the substantial cause of action was the same upon each issue.

We are unable to concur in the course of reasoning adopted by the court below, by which, in analogy to the rules pertaining to *547the former action of replevin, a claim of title by the defendant must be considered the statement of a cause of action in separate ■counts bringing him within the provisions of section 3234, entitling him to costs. The action of replevin was abolished by the Code of Procedure, and its peculiar and distinctive features suspended by the rules of practice therein provided, for the conduct of actions of claim and delivery. Analogies drawn from the ■charaetistics of the former action of replevin are not sufficient to overthrow or vary the clear and explicit language contained in section 3234. *Kilburn*v. *Lowe,*37 Hun, 237. The contention of the respondent would require a reconstruction of this section by striking out the words: “ wherein the complaint sets forth separately two or more causes of action,” and inserting in place thereof the words, “ that in all actions to recover two or more chattels, each chattel shall constitute a separate cause of action, and an issue thereon raised either by answer or proof shall create a separate statement of a cause of action.” Such a change in the language of an unambiguous statute is not justified by any rule of construction, and is authorized only by an exercise of legislative power.

Two cases in the supreme court, directly upon the point in issue, are cited and they are antagonistic. *Ackerman*v. *DeLude,*36 Hun, 44; *Kilburn*v. *Lowe (supra).*We are of the opinion that theoviews expressed in the latter case are correct. The views expressed by the learned court in deciding that case are so clear and concise that we have preferred to adopt its language rather than use more elaborate expressions. *“*At common law, and under the Revised Statutes, rules of pleading and practice peculiar to the action of replevin, prevailed. When both parties claimed the goods, both were deemed actors or plaintiffs.” *Coan*v. *Bowles,*1 Show., 165, 169; S. C., Carth., 122; *Anonymous,*2 Mod., 199; *Small*v. *Bixley,*13 Wend., 514; *Persse*v. Watrous, 30 Conn., 139, 146; Wells’ Replevin, § 21. When the defendant admitted and justified the taking, he was said to avow (3 Black. Com., 149; Whart Law Dicty., and Abb. Law Dict., Avowry). An avowry»was in the nature of a declaration (7 Bac. Abr. [7th ed.], 103, title “ Replevin and Avowry”; Whart. Law Dicty., Avowry), which required a reply from the plaintiff, and in default of one, the defendant was entitled to a judgment. *People ex rel. Lownds v. N. Y. Com. Pleas,*2 Wend., 644.

The section of the Revised Statutes above quoted did not, like the Code, require the several causes of action to be separately set forth in the declaration, but it was sufficient if the several causes of action were contained in separate counts. An avowry was held to be in effect a declaration, a separate count, a cause of action *(Coan*v. *Bowles, supra; Butts Case,*7 Coke, 24 *b;*6 Robt. Pr., 539; 1 Saund. [5th ed.], 347, *b,*note 3; 2 Sel. N. P. [18th ed.], 1153); and if upon such issues (both parties presenting affirmative ones) both recovered, both are entitled to costs. The cases under *548the Revised Statutes are not applicable to the Code, or to the rules of pleading and practice established by it. The section of the-Revised Statutes above quoted was superseded by the old Code *(Stoddard*v. Clarke, 9 Abb. [N. S.], 310; *Watson*v. Gardiner, 50 N. Y., 671), and was expressly repealed by chapter 245, Laws of 1880.”

Section 1728 has no bearing upon the question of costs. That was intended to enable a defendant to recover for a portion of the-chattels replevied although the plaintiff shall recover for others,, and authorized such an amendment of the pleadings as the rights-of the parties required. It was not intended by that section to-render the express requirements of section 3234 nugatory, which would be the case if .the contention of the respondent be adopted.

No harm can result to a defendant by the rule adopted, as by an offer of judgment he can always throw upon the plaintiff the responsibility for costs incurred in prosecuting an unsuccessful litigation as to any article of property described in the complaint.

Order of general term reversed, and that of special term affirmed, with costs.

All concur.