
    Kenneth Reuter, as Administrator of the Estate of Florence D. Nelson, Deceased, Plaintiff, v. Mary K. Gallets et al., Defendants.
    Supreme Court, Trial Term, Erie County,
    January 12, 1967.
    
      iSheldon Hurwitz for plaintiff. Weaver, Maghran S McCarthy for Mary IC. Gallets, defendant.
   Matthew J. Jasen, J.

Plaintiff moves to vacate and set aside a judgment for costs entered against him by the defendant, Mary K. Gallets.

Decedent, Florence D. Nelson, was a passenger in defendant Shirley Francisco’s automobile which was in collision at an intersection with an automobile of the defendant Mary IC. Gallets. Each of the defendants claimed to have the right of way by virtue of a signal control device. After trial, the jury found in favor of plaintiff against defendant, Shirley Francisco, in the sum of $3,000 and a verdict of no cause for action in favor of defendant Mary K. Gallets.

Judgment was entered by plaintiff together with a bill of costs, in the sum of $204.35 against the defendant Francisco, and there was recited in the judgment that the complaint against defendant, Mary K. Gallets, ‘1 be and the same is hereby dismissed.” Both defendants were served with copies of said judgment.

Subsequently, defendant, Mary K. Gullets ’ counsel, entered a judgment for costs in favor of his client in the sum of $202.45 against the plaintiff.

Since the cause of action upon which the defendant prevailed arises out of the same accident as the cause of action upon which the plaintiff recovered the judgment, the court has discretion under CPLR. 8101 and 8103 to deny costs to the defendant, and accordingly grants the motion of the plaintiff to vacate and set aside the judgment for costs heretofore entered against him by the defendant, Mary K. Gallets.  