
    The Metropolitan Elevated Railway Co., Resp’t, v. Charles Duggin and John D. Slayback, Impleaded, App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 24, 1890.)
    
    Costs—On partial affirmance by court of appeals—Code Civ. Pro., § 3238, subd. 2.
    On appeal to the court of appeals the judgment was reversed as to the other defendants and affirmed as to appellants, without costs. Held, that in such case the costs are discretionary under § 3238, suhd. 3, of the Code; that the court of appeals exercised that discretion, and that appellants were not entitled to costs in that court.
    Appeal from an order denying a motion of defendants for an order directing the clerk to tax in their favor a bill of costs upon appeal to the court of appeals.
    
      George W. Wdffenbach, for app’lts; Davies & Rapallo, for resp’t.
   Daniels, J.

These two defendants had judgment in their favor in the court of appeals, affirming a judgment of' the general term. And the judgment as to other defendants was reversed and the demurrer overruled. In this affirmance it was directed to be without costs. But these two defendants claim their costs, notwithstanding this direction, for the reason that the action was to enforce what is known as a legal liability. But the judgment from which the appeal was taken was affirmed only in part. It previously did include other defendants, and that part only was affirmed which included these two defendants. And on a partial affirmance, by subd. 2 of § 3238, the costs have been subjected to the discretion of the court. The language of the remittitur shows that this view was acted upon in making its decision by the court of appeals, and that it exercised this discretion. The case is very clearly against these defendants. . And the order should be affirmed, with ten dollars costs and the disbursements.

Yan Brunt, P. J., and Brady, J., concur.  