
    Turner Construction Company, Respondent, v. Rockwood Sprinkler Company of Massachusetts, Appellant, Impleaded with John F. LeBeau, Defendant.
    First Department,
    January 29, 1937.
    
      
      Colley E. Williams of counsel [Forbes D. Shaw with him on the brief; Whitman, Ransom, Coulson & Goetz, attorneys], for the appellant.
    
      J. G. Fink of counsel [Harry N. French with him on the brief; Eidlitz, French & Sullivan, attorneys], for the respondent.
   Per Curiam.

We think this action is controlled by the decision in Dudar v. Milef Realty Corp. (258 N. Y. 415), and that the plaintiff is entitled to recover except for expenditures incurred for attorneys’ services, amounting to $2,100, on its previous appeal to this court and to the Court of Appeals. Since those appeals were not taken at the request or on the consent of the appellant, the cost should not have been included in the judgment. (Murphy v. City of Yonkers, 213 N. Y. 124.)

The judgment against the defendant-appellant should be modified by reducing the amount thereof to $11,937.23, and as so modified affirmed, without costs.

Present — Martin, P. J., Townley, Glennon, Untermyer and Dore, JJ.

Judgment unanimously modified by reducing the amount thereof to $11,937.23, and as so modified affirmed, without costs.  