
    JACOB FRANK, RESPONDENT, v. JOSEPH J. DAILY ET AL., TRADING AS CHELSEA TIRE AND REPAIR COMPANY, APPELLANTS.
    Submitted August 3, 1918
    Decided March 4, 1919.
    Defendants appealed from a judgment against them in a District ■Court, and there b.eing no disputed question of fact, this court reversed the judgment below "and ordered a judgment final in this court in favor of the defendants. Held, that in such a case the appellate court ought not, in the exercise of discretion, withhold from the defendants, the prevailing party, the costs of the appeal under a statute providing that the prevailing party in any action at law shall be entitled to costs, unless the court should order otherwise.
    On motion for allowance of costs.
    Before Justices Bergen, Kalisoii and Black.
    Por the motion, Lee F. Washington.
    
    
      Contra, Endicott & Endicott.
    
   The opinion of the court was delivered by.

Bergen, J.

The defendants having seized an automobile for a lien for repairs under “An act- for the better protection of garage keepers and automobile repairmen” (Pamph. L. 1915, p. 556), the plaintiff, the owner, brought an action in replevin in a District Court and recovered, from which result in the trial court defendants appealed. ’ There was no dispute as to the facts, and the legal propositions advanced by plaintiffs being, in the opinion of the Supreme Court, unsound, it reversed the judgment, and, following Taylor v. Reed, 68 N. J. L. 178, and Sullivan v. Visconti, Id. 543, ordered judgment final to be entered in that court in favor of the defendants who now apply for an order allowing costs of the appeal in this court.

In Lehigh Valley Railroad Co. v. McFarland, 44 N. J. L. 674, tilie Court of Errors and Appeals held that there being-no statute giving costs on error, they were not recoverable, notwithstanding a rule of the court provided that the prevailing party should be considered as recovering costs unless the court, in express terms, adjudged to the contrary, holding that the rule only applied to cases where costs were recoverable by statute. But since that case was decided the legislature has enacted (Pamph. L. 1911, p. 756) that “the prevailing party in any action, motion or proceeding in the courts of law of this state shalL he entitled to costs, except where otherwise provided by law, and unless the court or judge before whom such action, motion or proceeding shall be taken shall order otherwise.” Tims we now have a statute which allows the prevailing party costs unless the court shall exercise its discretion to withhold them. This statute has been construed in Lynch v. Public Service Railway Co., 83 N. J. L. 783, and it was there-held that when the reversal is due solely to a mistake by the trial judge, and does not finally determine any issue but leaves the parties where they were before the trial, it was a proper exercise of the power to withhold costs, and, consequently, it was determined that where the reversal resulted in a venire de novo costs of the appeal would not be awarded.

In the ease under consideration there was no venire de novo awarded; the parties were not left as they were before the trial, because tbe issues between them were determined, and a judgment final entered for the defendants. Certainly, in such a case the defendants are a prevailing party, and, under such circumstances, the court ought not io exercise its discretion to withhold costs from the prevailing party. lAnder this statute the prevailing party is entitled to costs unless tliis court shall otherwise order, and we are of opinion that in this case we should not otherwise order. The motion is granted.  