
    William H. Murthey, Respondent, v. Dominic U. Burke, Appellant.
    Second Department,
    October 4, 1907.
    Costs on dismissal for want of prosecution.
    When an action is dismissed for an unexciiséd' failure to serve the complaint upon demand-the judgment is 'a final one, and by virtue.of sections 3228 and 3229 of'the Code of Civil. Procedure the .-defendant is entitled to cost's as a. matter of right. ■
    When the summons contains a .notice that upon default judgment will be taken for a specified sum of .money, with, costs, it will bó' assumed that the complaint if served would have demanded a money judgment only, .and in such case it is immaterial whether the action be' legal or -equitablé.
    Aureal by the defendant, Dominic H. Burke, from so much of an'order of the Supreirie Court, made at the’Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 17th day of November, 1906, as denies costs to the defendant upon the dismissal of the complaint.
    
      Michael J. Joyce, for the appellant.
    No appearance or brief for the respondent.
   Hirschberg, P. J.:

The action was commenced in the month of August, 1906, by the service of a summons, together with a notice that upon default judgment would be taken against the defendant for a specified sum of money, with costs. The defendant duly appeared by attorney and demanded a copy of the complaint. The complaint was never served, and in November, 1906, the defendant moved for a dismissal of the complaint, with costs, for want of prosecution of the action. ' The motion was opposed by the plaintiff’s attorney, but no affidavit was filed explaining or excusing the delay, and the court at Special Term dismissed the complaint, without costs. Thé appeal is from that provision of the order which denies the defendant costs on the granting of the dismissal.

The' order cannot be sustained. It is provided by section 822 of the Code of Civil Procedure that where a plaintiff unreasonably neglects to proceed in an action the court may, in its discretion, upon application of the defendant, dismiss the complaint and render judgment accordingly. The discretion having been exercised in favor of the defendant, judgment in his favor necessarily follows. The judgment is a final one, and by "virtue of the provisions of sections 3228 and 3229 of the Code of Civil Procedure costs belong to the defendant as a matter of right. This was held many ..years ago in Tillspaugh v. Dick (8 How. Pr. 33), Parker, J., saying: “The dismissal of the complaint was a judgment in favor of the defendant and entitled him to recover whatever items of costs are given by the Code for ■ services rendered.”

It is to be assumed from the notice served with the summons that had a complaint been served, the demand for relief would have been limited to a demand for a money judgment. That being so, it is immaterial for the purpose of the question under consideration whether the. .action - be legal or equitable. (Murtha v. Curley, 92 N. Y. 359, 361.) Subdivision 4 of section 3228 of the Code of Civil Procedure gives costs to the plaintiff as of course on final judgment where the complaint demands judgment for a sum-of money only. Section 3229 provides that the defendant shall have costs, of course, in an action specified in the preceding section, unless the plaintiff, is entitled to costs as therein prescribed ; and by section 3230 the discretion of the court in awarding costs is limited to actions other 'than "those prescribed - in the preceding two sections. It necessarily follows'that the court was without power-to order judgment in favor of the defendant in this action without granting liim the costs to which he is entitled as of right.

The order, in so far as appealed from, should be reversed,' with ten dollars'costs and disbursements, and the motion ■ to' dismiss granted, with costs' of the action and ten dollars costs of the motion.

Woodward, Hooker, Gaynor and Rich, JJ., concurred.

Order, in so' far as appealed from, reversed, with ten dollars costs and disbursements, and motion granted, with costs of the action and ten dollars costs of. the. motion. .  