
    Shell Oil Company, Plaintiff, v. Convent Service Station, Inc., et al., Defendants.
    Civil Court of the City of New York, Special Term, New York County,
    June 4, 1963.
    
      Northrup $ Jessop for plaintiff. Smith S Rafsky for Wendrow, defendant.
   Harold Baer, J.

This is a motion by the defendant Wendrow to direct the Clerk to enter a judgment for costs in his favor against the plaintiff.

Plaintiff sued both this defendant and a corporate defendant. It sued the latter for goods sold and delivered and the former on a written guarantee. After a jury trial a verdict was rendered in favor of the plaintiff against the corporate defendant and in favor of the individual defendant, Wendrow, against the plaintiff.

The movant here relies upon subdivision (c) of section 162 of the New York City Civil Court Act, and upon the case of Nunnery v. Bobrose Developments (163 Misc. 829) and the cases cited therein. There is no doubt that a defendant such as Wendrow here would have been entitled to costs as a matter of right at the time the Nunnery case was decided or at any time prior to 1938. However, under subdivision 11-b of section 164 of the New York City Municipal Court Code (added by L. 1938, ch. 431, now subd. [Z] of § 163 of OCA) which provision is identical to that of section 1476 of the Civil Practice Act, costs in circumstances such as these are discretionary (Berger v. Grossman, 172 Misc. 1098; 23 Carmody-Wait, New York Practice, § 96, pp. 117-120).

While the defendants here were technically not united in interest and Wendrow did not unite in his answer with the unsuccessful defendant, I do not feel that under all the circumstances of this case that costs should be awarded in the exercise of good discretion.

Motion is accordingly denied.  