138 N.Y.S. 661 | N.Y. App. Div. | 1912
We are of the opinion that the complaint was rightly dismissed as against the defendants Cornell and Willets. It was erroneous, however, to enter a judgment for costs in favor of the defendant Weil. The record shows that as to him the action was discontinued by consent on the trial. That eliminated him from the action, and thereafter no judgment could run either for or against him. If he desired costs against the plaintiff, to which he probably was entitled, he should have entered an order of discontinuance containing a provision for such costs. The judgment must be modified by striking out so much thereof as awards costs to the defendant Weil against the plaintiff, and as modified affirmed with costs to the respondents Cornell and Willets. Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred. Judgment modified as directed in opinion, and as modified affirmed, with costs to respondents Cornell and Willets. Order to be settled on notice.