#### August Gaetjens, Appellant, *v.*City of New York, Respondent.

Second Department,

June 29, 1911.

Costs —'négligence — settlement- of action against two defendants — verdict against third for six cents.

Where one who has sued thrée defendants for injuries received through then- joint negligence settles .with two of them, he can recover from the third only so njuch. of the compensation for the injuries as remains unpaid. v

Where the action goes to trial in the Supreme Court as against the third defendant, the issue is what if any compensation is the plaintiff entitled to recover for his injury heyond the amount • already paid by the two defendants who have settled, and where the jury renders a verdict in his favor for six cents, he is not entitled to costs.

Appeal by the plaintiff, August G-aetjens, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office, of the clerk of the county of Kings on the 3d day of April, 1911, denying the plaintiff’s motion for a new taxation of costs. '

*Henry E. Heistad,*for the appellant.

*James D. Bell [C. J. Druhan*and *Archibald B. Watson*with him on the brief], for the respondent.

Jerks, P. J.:

The plaintiff sued three defendants for negligence. Pending trial the plaintiff made a settlement with two of the said , defendants whereby he received $2,000, and thereupon an order was made that discontinued'the action as to them and thus left this defendant sole. This defendant, who was not a party to the said settlement,' made supplemental answer pleading1 the safe -settlement and the discontinuance thereupon, and alleging as a defense that the said payment was in full compensation, for the alleged'injuries and damages set forth in the complaint. The jury, who were instructed that any question of damages involved the deduction of the amount theretofore paid by the other defendants, found a verdict for six cents for' the plaintiff. This appeal is from an order of -the Special Term *641that denies plaintiff’s motion for a review of the taxation of costs by the clerk which disallowed wholly plaintiff’s hill of costs presented for $116.97. x

I think that the order must be affirmed. /The complaint is upon an alleged joint tort. The plaintiff had received satisfaction to the extent of $2,000. . The effect of the stipulation and the order was a covenant not to sue the other tort feasors. *(Gilbert*v. *Finch,*173 N. Y. 455, 466.) But the plaintiff was entitled to pursue this defendant for only so much of the compensation- for the injury as had not been paid. Otherwise he could receive some compensation for his injury from two of the joint tort feasors and yet full compensation therefor from the other tort feasor. (See *McCrillis*v. *Hawes,*38 Maine, 566; *Ellis*v. *Esson,*50 Wis. 138; *Sloan*v. *Herrick,*49 Vt. 327, all cited in *Gilbert*v. *Finch, supra.)*The issue then was, what compensation, if any, beyond $2,000 is the plaintiff^ entitled to recover for the injury ? As he had not recovered the sum of $50 or more, he was not entitled to costs. (Code Civ. Proc. § 3228, subd. 4; see, too, Milliman Law of Costs, 128.) *Hoe*v. *Sanborn*(36 N. Y. 93), relied upon by the appellant, may be discriminated. The parties remained the same. The defendant received a favor on conditions, of which one was that the cause should proceed as to the amount of $150 and “ all other matters in controversy in the action,” and the court expressly held that the question of costs constituted the “ other matters in controversy in the action.”

The order is affirmed, with ten dollars costs and disbursements. ■ .

Hirschberg, Burr, Thomas and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.