John M. Gibbons, Respondent, v. Albert Skinner, Appellant

John M. Gibbons, Respondent, v. Albert Skinner, Appellant. First Deparment, May 31, 1912. Costs—where complaint and counterclaim both dismissed at trial. Where the plaintiff sues for the conversion of a ¡sum of money and the defendant pleads a counterclaim, and at the trial both the complaint and the counterclaim are dismissed, the defendant is entitled to costs under section 3229 of the Code of Civil Procedure, since no final judgment was rendered- in favor of the plaintiff. The test afforded by the Code of- Civil Procedure is the fact of the rendition of a judgment in favor of the plaintiff, and the fact that defendant was unsuccessful in sustaining a counterclaim is immaterial Appeal by the defendant,. Albert Skinner, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of March, 1912, disallowing and striking from the judgment certain items of costs. G. S. & H. L. Hooker, for the appellant. James W. Carpenter, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: 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.