Wardlaw v. Mayor, etc. of N. Y. L. Laflin Kellogg (Kellogg, Rose & Smith, attorneys), for the motion. William H. Clark, opposed. GILDERSLEEVE, J.-On April 6, 1893, an order was entered allowing defendants to serve an amended answer, on payment of the costs of Trial and General Terms, and $10 costs of motion. The plaintiff had been successful at the trial and at General Term, but the court of appeals reversed the judgments in plaintiff's favor and ordered a new trial, with costs to abide the event. Thereupon, defendants moved for leave to serve an amended answer. I granted the application on condition that defendants pay the costs of the Trial and General Terms, holding that inasmuch as this amendment might possibly result in a verdict for defendants, in which event plaintiff would lose the costs of the Trial and General Terms, in which she had been successful, it was just that she should receive these costs as a condition for granting the motion; and I imposed also on defendants $10 as the costs of the motion (Ireland v. Metropolitan El. Ry. Co., 8 State Rep. 127). The plaintiff afterwards entered into a stipulation with defendants that these costs should be regarded solely as a penalty which defendants must pay for the privilege of serving an amended answer, and that if the plaintiff is successful at the trial, she may tax the same costs again. The amount of the costs as taxed, including an extra allowance of $343.15, is $580.48, which, with the costs of the motion, amount to $590.48. This sum the defendants regard as an excessive penalty to pay for leave to serve an amended answer. The plaintiff, on the other hand, contends that under the decision of Ireland v. Ry. Co. (supra) she is entitled to receive that amount, to wit, all her costs, disbursements and allowance as taxed. I cannot agree with this contention. The terms are entirely discretionary with the court, and should be regu Hiscox v. New Yorker Staats Zeitung. lated according to the circumstances of the case. Section 723 of the Code, which governs applications of this character, provides that the court may grant such applications, "and on such terms as it deems just." I do not think, under the circumstances, that it would be just to impose on defendants so heavy a penalty as $590.48 for permission to serve their amended answer. I am of the opinion. that for the privilege of coming in and serving an amended answer the defendant should pay to the plaintiff the sum of $247.23, which is equal to the taxable costs and disbursements of the two terms at which the plaintiff was successful, together with $10, the costs of this motion. This is the sum contemplated by the court when the motion was granted. It was not intended that the penalty should be made up by including therein a sum equal to the extra allowance. HISCOX v. NEW YORKER STAATS ZEITUNG. N. Y. Court of Common Pleas, Special Term; March, 1893. Costs; consolidated action.] Where a consolidation of actions is ordered, the successful party will only be entitled to the costs and disbursements of the consolidated action from the time of consolidation, unless the order consolidating the actions reserves the right to tax the costs of the discontinued actions. Motion by both parties for a new taxation of costs. The facts are stated in the opinion. Samuel Blythe Rogers, for plaintiff. J. H. K. Blauvelt, for defendants. Hiscox v. New Yorker Staats Zeitung. GIEGERICH, J.-This action is the result of the consolidation of two actions against the Staats Zeitung and Mr. Ottendorfer, respectively. The Ottendorfer case was commenced first, and the plaintiff afterwards brought suit against the newspaper. Both actions were brought for the same libel published in the aforementioned newspaper. Issue was joined in the Staats Zeitung case, which was placed on the calendar, and a notice of trial was served. Issue was joined in the case against Mr. Ottendorfer and a notice of trial was served, but the cause was not put upon the calendar. On February 9, 1893, an order was entered consolidating these two actions into one, entitled against both defendants, and directing the service of an amended complaint and answer in the consolidated action and that " said cause retain its place upon the calendar." A few days thereafter the defendant made an offer of judgment, with costs, in the action so consolidated, which was accepted, and the plaintiff is about to enter judgment thereupon. No notice of trial has been served in the consolidated action. The plaintiff's proposed bill asked for costs to date in the Staats Zeitung case, and these were allowed by the clerk, though objected to by the defendant. The plaintiff asked also for costs in the Ottendorfer case, which on being objected to by the defendant, were disallowed by the clerk. Both parties apply for a review of the clerk's taxation. The plaintiff contends that "neither action was discontinued," but that both actions "continue alive," and that they "simply merge into each other." The authorities, however, do not favor this contention. By consolidation the other actions were discontinued, and only the consolidated action remains (Blake v. Michigan Southern R. R. Co., 17 How. Pr. 228). The case of Earl v. Lefferts (1 Johns. Cas. 395), decided in 1800, seems to hold to the contrary; but this case cannot be regarded as an authority, for the very objects of consolidation are to prevent the unnec Hiscox v. New Yorker Staats Zeitung. essary accumulation of costs and a multiplicity of actions (Thompson v. Shepherd, 9 Johns. 262; Brewster v. Stewart, 3 Wend. 441; Blake v. Michigan Southern R. R. Co., supra; Third Ave. R. R. Co. v. Mayor, 54 N. Y. 159; see 2 McCarty's Civ. Pro. R. 177, note on consolidation of actions). Where a consolidation is ordered, the successful party will be entitled to tax only the costs of the consolidated action, unless the right to tax the costs of the discontinued action is reserved in the order (Blake v. Michigan Southern R. R. Co., supra; 1 Rumsey's Pr. 236). HOGEBOOM, J., in delivering the opinion of the court in the case of Blake v. Michigan Southern R. R. Co. (supra), well says: "I know of no principle by which costs, in actions discontinued, can be included in another action, even though it embraces the cause of action in the first. Provision for such costs must be made in the discontinued actions before they finally cease to exist." Inasmuch as the order of consolidation contains no provision reserving the right to costs of the original actions, already accrued, it follows that the plaintiff is not entitled to costs in either of them (Blake v. Michigan. Southern R. R. Co., supra). The plaintiff, therefore, should be allowed only costs. of the consolidated action. For these reasons, the taxation of the plaintiff's costs should be set aside, and a new taxation directed before the clerk, who should allow to the plaintiff costs and disbursements in the consolidated action only from the time of the consolidation of the original actions, viz., February 9, 1893, to the time when the offer of judgment was made; and disallow all items in the two actions which were consolidated. The clerk will therefore allow only for proceedings before notice of trial, and disbursements made or incurred since February 9, 1893, to the time when the offer of judgment was made. Maynard v. Vanderwerker. MAYNARD v. VANDERWERKER. N. Y. Supreme Court, Second District, Special Term, Kings County; June, 1893. Benefit societies; contract preventing change of beneficiary.] Although ordinarily the designation of a beneficiary in the certificate of a member of a fraternal beneficiary society is in the nature of an inchoate or unexecuted gift, revocable at any time by the donor, such member may by contract with the beneficiary by the terms of which the latter is to pay the assessments and receive the benefits, vest an interest in the beneficiary and deprive himself of the power of making a change in the designation of the beneficiary; and where such contract has been performed on the part of the beneficiary by paying the assessments levied, such beneficiary is entitled to a death benefit as against a third person whom the member has attempted to substitute as beneficiary. Trial by the court of an action between rival claimants, brought in by order of interpleader, to recover moneys payable as a death benefit in a fraternal beneficiary society. On September 17, 1889, Ray R. Smalley became a beneficiary member in the Knights and Ladies of Honor, a fraternal beneficiary society, receiving a certificate in favor of her aunt, Angelina Vanderwerker, the defendant, which provided for payment of a death benefit of $3.000, and which certificate was delivered to the defendant. On September 6, 1890, the member married plaintiff, and about a month thereafter she executed a paper directed to the supreme officers of the Knights and Ladies of Honor in which she stated that the certificate issued in favor of her aunt was lost, and requested that a new certificate be issued in favor of her husband. The member died on the |