Gibbons v. Skinner — 135 N.Y.S. 820

Majority

p. 820

GIBBONS v. SKINNER.

(Supreme Court, Appellate Division, First Department.

May 31, 1912.)

Headnote

Costs (§ 48*)—Right to Costs—Dismissal of Complaint-and Counterclaim.

Code Civ. Proe. § 3228, provides that plaintiff is entitled to costs only on the rendering of a judgment in his favor, and section 3229 provides that defendant is entitled to costs unless plaintiff is entitled to costs.

■ Heíü, that where plaintiff sued for conversion, and defendant filed a counterclaim, and at the trial both the complaint and the counterclaim were dismissed, defendant was entitled to costs.

[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 192-210; Dec. Dig. § 48.*]

*For'other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Appeal from Special Term, New York County.

Action by John M. Gibbons against Albert Skinner. From an order disallowing and striking from the j'udgment costs taxed in favor of defendant, he appeals. Reversed.

Argued before INGRAHAM, P. J., and McLAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ.

G. S. & H. L. Hooker, of Watertown, for appellant.

James W. Carpenter, of Brooklyn, for respondent.

Plaintiff sued in the Supreme Court for the conversion of $28.18. Defendant counterclaimed for $546.97. At the trial both -the complaint and the counterclaim were dismissed. The only question is whether under these circumstances the defendant is entitled to costs. It is clear that he is.

Under section 3228, Code of Civil Procedure, a plaintiff is entitled to costs in an action like the present only “upon the rendering of a judgment in his favor.” By section 3229 the defendant is entitled to costs in such an action “unlegs the plaintiff is entitled to costs.”

In .the present case no final judgment was rendered in favor of plaintiff, and he was not therefore entitled to costs. Consequently, the deféndant was so entitled. The test afforded by the Code is the fact of the rendition of a judgment in favor of plaintiff, and the fact that defendant was unsuccessful in sustaining a counterclaim is immaterial.

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs.