Brooklyn Union Gas Company, Plaintiff, v. Jamaica Buses, Inc., Respondent, and Jean Walsh et al., Appellants

Brooklyn Union Gas Company, Plaintiff, v Jamaica Buses, Inc., Respondent, and Jean Walsh et al., Appellants. [MAJORITY] In an interpleader action, inter alia, to determine the validity of an alleged lien interposed by defendant Jamaica Buses, Inc., defendants Jean and Bertrand Walsh appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Goldstein, J.), dated December 13, 1983, as denied their motion to strike the first affirmative and complete defense pleaded in the answer of defendant Jamaica Buses, Inc. Order reversed insofar as appealed from, on consent of defendant Jamaica Buses, Inc., with costs payable by defendant Jamaica Buses, Inc., to appellants, and appellants’ motion to strike the first affirmative and complete defense pleaded in the answer of said defendant granted. The only issue presented on the instant appeal is whether defendant Jamaica Buses, Inc., having consented to the reversal of the order insofar as appealed from by appellants, should be required to pay costs or disbursements incurred by appellants in perfecting this appeal. Since defendant Jamaica Buses, Inc., did not consent to the reversal until after appellants had filed a record on appeal and a brief, appellants are entitled to recover their costs and disbursements from defendant Jamaica Buses, Inc. Thompson, J. P., Niehoff, Lawrence and Kunzeman, JJ., concur.