Hodgkins v. Mead

Defendants were husband and wife. Plaintiff brought this action to recover certain commissions as a real estate broker for selling certain property belonging to Mrs. Mead, in which transaction the defendant, George W. Mead, acted as the agent of his wife. Both defendants answered separately.

On the trial the complaint was dismissed as to the defendant George W. Mead, and judgment was entered in his favor, granting him costs, “conditionally, viz: to be offset against the judgment herein against Sarah P. Mead, and that no execution be issued for said costs of said George W. Mead.”

The said George W. Mead appeals from so much of the judgment, as above quoted, as affixes a condition to the granting of costs to him.

. Section 3229 of the Code of Civil Procedure provides, that where, “in an action against two or more defendants, the plaintiff is entitled to costs against one or more, but not against all of them, none of the defendants are entitled to costs, of course. In that case, costs may be awarded, in the descretion 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.” Under the above section, the court had a right to award costs in this action to the appellant, if, in the exercise of its discretion, it thought proper so to do. Here the court declined to award costs absolutely to the appellant, but, in the exercise of the discretion with which it was vested, it made a conditional award. This it had the right to do. Wheeler v. Heermans and ano., 3 Sandf. Ch. R., 597.

Accordingly, the only question left for us to consider is as to whether this discretion was wisely exercised, and we can see nothing in the case that would justify us in concluding that the trial court erred in the exercise of its discretion.

So much of the judgment as is appealed from is affirmed, with costs.

Van Wyck, J. concurs.