Ljungquist v. Hartmetz

54 Misc. 87, 104 N.Y.S. 498

Opinion

Wadhams, J.

Where the complaint is dismissed as to a defendant who answered separately, such defendant is not entitled to costs, as a matter of course, provided the plaintiff is entitled to costs against one or more defendants. In such case costs may be awarded in the discretion of the court. Code Civ. Pro., § 3229. As no application for an award of costs was made in this case, the judgment entered improperly awarded costs in favor of the defendant. The proper remedy in such case is an order striking from the judgment docketed and entered in favor of the defendant and against the plaintiff that portion thereof awarding costs of the action in favor of the defendant and against the plaintiff. Eastman v. Gray, 81 Hun, 362. Such order may be entered.

Ordered accordingly.