The action was commenced upon a bank check drawn by “ Eobert Wilson, trustee,” one of the defendants. The co-defendant, H. Josephine Wilson, was made a party on the allegation that Eobert Wilson was her trustee, and that in making the check he acted on her behalf and for her benefit It was neither in law nor in fact the joint check of both defendants, but the individual obligation of Eobert Wilson, the term “ trastee ” being merely descriptio personae, the cestui que trust not being in any manner liable upon it
Upon the trial the plaintiff recovered a verdict against Eobert Wilson individually, but as to H. Josephine Wilson the cestui que trust, the complaint was dismissed, “ with costs.” The plaintiff entered judgment on the verdict against Robert Wilson, “ with costs,” and the defendant, H. Josephine Wilson, had her costs taxed by the clerk, and from an order denying a motion to set aside the taxation the present appeal is taken. The question to be considered on this appeal is as to the power of the trial judge to allow costs to the defendant, who was successful at the trial, because if the court had no discretionary power in the premises the award of costs and the taxation which followed were all without authority, and the application to set aside the taxation ought to have been granted. By the common law costs were not awardable and were recoverable only by action (Downing agt. Marshall, 37 N. Y., 380). The power to award costs emanates from the statute, and authority for awarding them must be found in the Code, or they cannot be awarded.
The rale that where the plaintiff does not succeed as to costs they go, as, of course, to the defendant, has its exceptions, one of which will be found in section 3229 of the Code, which, among other things, provides that in “ an action against two or more defendants, wherein the plaintiff is entitled to costs against one or more, but not against all of them, none of the defendants *20are entitled to costs, of course. In that ease 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 an answer and was not united in interest with a defendant against whom the plaintiff is entitled to costs.”
The defendant, H. Josephine Wilson, was not united in interest with Robert Wilson, and is entitled to costs, unless the circumstance that she united with her co-defendant in an answer to the complaint, instead of interposing a separate answer thereto, prevents the court from making the discretionary award of costs contemplated by the section cited. Section 3229 (supra) is taken from sections 305 and 306 of the former Code of Procedure, which contained similar language. These sections were considered by the court of appeals in Allis agt Wheeler (56 N. Y., 50), which held that the right to costs in such cases as the present was confined to those expressly mentioned in the section, i. e., where the successful defendant 'is not united in interest with those against whom the plaintiff recovers, and where they make separate defenses by separate answers. That the fact of not being united in interest standing alone is not sufficient; a separate defense by a separate answer must have been interposed as well, as both of these circumstaneés must exist before the costs can be awarded.
To the same effect in Park agt. Spaulding (10 Hun, 128), and the codifiers say that they intended section 3229 (suprd), as adopted by the legislature, to be in accordance with the law as laid, down in Allis agt. Wheeler (supra), and they have, in our judgment, given legal effect to their intention. It follows from this interpretation of section 3229 (supra) that the defendant, H. Josephine Wilson, though successful in her defense, is not entitled to costs, on the sole ground that she failed to interpose a separate answer, that the court had no power to award her costs and that the subsequent taxation thereof was unauthorized and should have been set aside upon the motion made for that puipose.
The order appealed from must, therefore, be reversed, but as *21the question of interpretation under the present Code is apparently new, the reversal will be without costs (Code, sec. 3229).