135 N.Y.S. 820 | N.Y. App. Div. | 1912
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 of the Code of Civil Procedure a plaintiff is entitled to costs in an action like the present only upon the rendering of a final judgment in his favor.” By section 3229 the defendant is entitled to costs in such an action “ unless 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 defendant 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.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.