The Defendant’s claim is founded on the 26th section of the Revised Statutes, in relation to costs, (2 R. S. 617,) which provides that “ when there shall be several issues joined in any cause, and a verdict shall be rendered for the Plaintiff on one or more of them, and for the Defendant on another, if the Plaintiff obtained judgment npon the whole record, costs shall be awarded as follows:
“1. When the substantial cause of action was the same in each issue, the Plaintiff shall recover the costs on those issues which were found for him, and shall not be liable to the Defendant for the costs of the issue, which shall have been found for such Defendant.
“ 2. When there are two or more distinct causes of action in separate counts, the plaintiff shall recover costs on those issues which are found for him ; and the Defendant on those which are found in his favor.”
It is contended by the Defendant’s counsel that each count in the declaration contains a distinct cause of action, and that therefore the case comes within the second subdivision of the statute. The case cited (Crittenden vs. Crittenden, 1 Hill, 359,) does not sustain the position. In that case the Plaintiff claimed an estate in dower in one count; and an estate in fee as heir-at-law in the other. The titles were essentially different, and required different evidence. But in the present case the causes of action in the different counts are substantially the same. The Plaintiff claims all the premises in fee, and the counts only vary in the degree, of interest claimed. Each count requires the same line of proofs, but differs from the others, in order to meet the uncertain views of the jury upon a conflict of evidence, or the opinion of the court upon some disputed legal question. (Bull vs. Ketchum, 2 Denio, 188.)
Nor do I think the case of Seymour vs. Billings, (12 Wen. 285,) will warrant this court in granting this motion, upon the ground that the Plaintiff wholly failed to make out his right to recover as to the second *204lot mentioned in each count. In that case the rule was so applied to an action of replevin. But I am constrained to say, that I cannot consider that case as an authority beyond that particular action. If we adopt the general rule, that the Defendant is entitled to recover costs, whenever the Plaintiff fails as to any distinct item of his claim in a count, it will be rare indeed that an action of trover, debt, or assumpsit, will be tried without being followed by a similar motion.
The motion must be denied, without costs.