
    Caroline Ljungquist, Plaintiff, v. John Hartmetz and Ida Hartmetz, Defendants.
    (City Court of New York, Special Term,
    April, 1907.)
    Costs: When allowable — Several defendants — Defendants as to whom complaint is dismissed; Determination of right to and amount of costs — Application for and determination of right to costs — Necessity for order.
    Where the complaint is dismissed as to a defendant who answered separately, costs are in the discretion of the court;, and a judgment entered in such a case, including costs where none have been awarded, should be corrected on motion.
    Motion to correct judgment.
    John T. Loew, for plaintiff.
    Herman Elfers, for defendant.
   Wadhams, J.

Where the complaint is dismissed as to a defendant who answered separately, such defendant is not entitled to costs, as a matter of course, provided the plaintiff is entitled to costs against one or more defendants. In such case costs may be awarded in the discretion of the court. Code Civ. Pro., § 3229. As no application for an award of costs was made in this case, the judgment entered improperly awarded costs in favor of the defendant. The proper remedy in such case is an order striking from the judgment docketed and entered in favor of the defendant and against the plaintiff that portion thereof awarding costs of the action in favor of the defendant and against the plaintiff. Eastman v. Gray, 81 Hun, 362. Such order may be entered.

Ordered accordingly.  