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Weber Bunke Lange Coal Co. v. Chellborg

139 A.D. 602 Court N.Y. App. Div. Decision date 1910-07-07 English

Delivered by McLaughlin, J.:

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p. 602
Weber Bunke Lange Coal Company, Respondent, v. Cornelius S. Chellborg, Doing Business as C. S. Chellborg & Co., Appellant.
. First Department,
July 7, 1910.

Headnote

Costs—dismissal of complaint.
Where the complaint in an action for goods sold and delivered is dismissed at the close of the case, the defendant is entitled to costs- as a matter of right whether or no the dismissal be upon the merits. The fact that the judgment does not bar a subsequent action for the same cause does not affect the defendant’s right to costs.
Appeal by the defendant, Cornelius S. Chellborg, doing business as C. S. Chellborg & Co., from .part of a judgment of the ■Supreme Court in favor of the defendant, entered in' the 'office.'of the clerk of the county of Mew York on the 10th day of March, 1910, upon the dismissal of the complaint, by direction of the court, after a trial at the Mew York Trial Term.
L. E. Warren, for the appellant.
John H. Emmerich, for the respondent.

Action to recover the purchase price of goods sold and delivered. The court denied defendant’s motion to dismiss the complaint, made' at the close of plaintiff’s case, and at the close of the whole case assumed to dismiss the complaint, without costs. The- dismissal, in effect, amounted to the direction of a verdict for the defendant. Judgment was entered accordingly, and defendant, appeals from so much thereof as adjudged “ that the defendant recover no costs of this action.” - ■

The right to costs is statutory and depends in the present case , on the provisions of sections 3228, subdivision 4-, and 3229 of the Code of Civil Procedure.- Whether the judgment is upon the merits or not, it is a final one because it terminates the action, and the defendant consequently had an absolute right to costs. (Murthey v. Burke, 121 App. Div. 400 .) The fact that-the judgment does not

p. 603
bar a subsequent action for the samé cause of action in no wise affects the defendant’s right to costs in this action which has terminated in' his favor.

The judgment, therefore, should be modified, with costs to the appellant, so as to adjudge that defendant recover the costs of the action to be taxed by the clerk.

Ingbaham, P. J., Clabke, Scott and Milleb, JJ., concurred.

Judgment modified ■ as directed in opinion, and as modified affirmed, with costs to appellant. Settle order on notice.

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