Majority
p. 572George Cohen et al., Respondents, v Edward Omotoso, Appellant, et al., Defendants.
In a mortgage foreclosure action, the appeal is from so much of an order of the Supreme Court, Kings County, dated December 2, 1975, as, upon conditionally granting appellant’s motion, inter alia, to dismiss the complaint, awarded a $400 counsel fee to plaintiffs. Order reversed insofar as appealed from, with $50 costs and disbursements, and the provision awarding plaintiffs a counsel fee is deleted therefrom. The award of a counsel fee to plaintiffs was unwarranted and inconsistent with
p. 573
the conditional granting of appellant’s motion to dismiss the complaint. Appellant, in effect the prevailing party, should be awarded costs in any final judgment to be entered hereon. Martuscello, Acting P. J., Latham, Margett, Rabin and Hawkins, JJ., concur.