
    Henry A. Conolly, as Surviving Partner of the Firm of E. D. Conolly & Sons, Respondent, v. Rosalie E. Hyams, as Executrix, etc., of Joel E. Hyams, Deceased, Appellant.
    
      Offer of judgment under section 738 of the Code of Civil Procedure—it does not apply to an equity action in which the complaint is dismissed without costs.
    
    Section 738 of the Code of Civil Procedure, providing that a defendant, who has made an offer of judgment, in the event of the plaintiff’s failure to obtain as favorable a judgment as that contained in the offer, is entitled to costs from the time the offer was made, was not designed to deprive the court of its discretionary power in awarding costs in equity actions.
    Accordingly, where the referee, before whom an equitable action has been tried, directs the dismissal of the complaint, without costs, the fact that the defendant has made a more favorable offer of judgment does not entitle him to'the • costs accruing after the offer.
    Semble, that if the referee had allowed costs the defendant would have been entitled to full costs of the action.
    Appeal by the defendant, Rosalie E. Hyams, as executrix, etc., of Joel E. Hyams, deceased, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 10th day of April, 1899, denying her motion to direct the clerk to tax costs in her favor, and also that she be granted an extra allowance.
    Joel E. Hyams was the original • defendant, and upon his death the action was continued against his executrix.
    
      G. Donohue, for the appellant.
    
      Benjamin Yates, for the respondent.
   Van Brunt, P. J.:

This, action was brought to foreclose a mechanic’s lien, the plaintiff claiming a lien on the property for $10,787.77. The original defendant served an offer of judgment, whereby he offered to allow judgment to be entered against him and in favor of the plaintiff for $8,250, with interest and the costs of the action. The issues joined in the action were referred to a referee to hear and determine. After a trial before the referee, he directed a judgment dismissing the complaint without costs. Thereupon, upon proof of the making of the offer of judgment, and upon the ground that the plaintiff did not obtain as favorable a judgment as contained in the offer, the present defendant moved for an order directing the clerk to tax costs in favor of the defendant, and also for an extra allowance- of $750. This motion was denied, and from the order thereupon entered this appeal is taken.

The action was an equity action, in which the costs were in the discretion of the trial court; and it'having determined that the complaint should be dismissed without costs, it is difficult to see how section 738 of the Code of Civil Procedure, relied upon by the defendant, can apply. It is true that under the strict language of the section, even in an equity case, the defendant would be entitled to costs after the offer, where tlie plaintiff had not obtained as favorable a judgment as that contained in the offer. But it is also well settled that in equity cases costs are within the discretion of the court, and there is no intimation in the section of an intention to deprive the court of such discretion!. The section in question was undoubtedly intended to refer to; those cases where costs ' were allowed, and can have no application whatever to those cases in which, in the discretion of the court, the judgment is rendered without costs to either party. The defendant herein, if costs had been allowed, would have been entitled to full costs of the action ; but the referee having determined that the complaint should be dismissed without costs, and, therefore, no one being entitled to any costs, the section in question did not apply. The cases cited, in which it w'as held that the section applied to equity actions, as well as to actions at law were cases in which costs had been allowed by the trial court. ■

We think that the' order appealed from should be affirmed, with ten dollars costs and disbursements.

. Babbett, Bumsey, Pattebson and O’Brien, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  