
    Felix Ury, Pl’ff, v. Herman Wild, Def’t.
    
      (New York Superior Court, Special Term,
    
    
      Filed December 5, 1888.)
    
    1. Costs—Taxation op.
    By section 3328 of the Code of Civil Procedure, the plaintiff is entitled to costs in certain actions upon tlie rendering of final judgment in Ms. •favor. By section 3229 the defendant is entitled to costs upon the rendering of final judgment in an action specified in section 3228, unless the-plaintiff is entitled to costs as herein prescribed. Both parties are entitled, to costs in certain actions under section 3234 of the Civil Code, where the complaint sets forth several causes of action; and issues are joined thereon- and the plaintiff recovers upon one or more and the defendant upon the-others.
    2. Same—Who entitled to.
    Where it is shown that under section 3228 the plaintiff is not entitled to-costs it follows that the defendant is entitled to costs. Where the final, judgment in an action is not rendered in favor of plaintiff, he is not entitled to costs.
    8. Same.
    The case of Kalt v. Lignot (12 How., 535, affirmed 3 Abb. Pr., 190),, decided in 1856 is not now an authority.
   Truax, J.

The right of a party to an action to costs in that action depends upon the Code of Civil Procedure. The plaintiff is entitled to costs in certain actions “upon the-rendering of a final judgment in his favor.” Section 3228. The final judgment in this action not having been rendered in his favor, the plaintiff is not entitled to costs. Section 3229 provides that the defendant is entitled to costs “upon the rendering of final judgment in an action specified in the-last section, unless the plaintiff is entitled to costs as herein prescribed.” It has been shown that under section 3228 the-plaintiff is not entitled to costs. It therefore follows that the defendant is entitled to costs. This view of the law is sustained by section 3231 of the Code of Civil Procedure, which provides that in an action specified in section 3228,. wherein the complaint sets forth separately two or more-causes of action upon which issues of fact are joined, if the-plaintiff recover upon one or more of the issues, and the defendant upon the other or others, each party is entitled to-costs against the adverse party, unless it is certified that the substantial cause of action was the same upon each, issue, in which case the plaintiff only is entitled to costs.. There is no other section of the Code that gives both the-plaintiff and the defendant costs in the same action.

The case of Kalt v. Lignot (12 How., 535; affirmed, 3 Abb. Pr., 190) is cited as authority for the proposition that where the plaintiff sues to recover $1,000, and the defendant denies the plaintiff’s right to recover and sets up a counter-claim for $200, and the judgment is for the defendant in an amout less than the counter-claim, such party is entitled to costs as against the other. That case was decided in 1856, when the Code said that “the prevailing; party” was entitled to costs. It was decided upon the-theory that in a case of the kind mentioned above each party was the prevailing party ; the plaintiff had prevailed' in cutting down the defendant’s counter-claim, while the-'defendant had prevailed by defeating the plaintiff’s cause of action.

The case of Kalt v. Lignot (supra) was cited by the general term of this court in 1 Sweeny, 363, upon another point. It was disapproved in Landsberger v. Magnetic Tel. Co. (8 Abb. Pr., 35), and is not, I think, an authority under the present Code. See Thayer v. Holland, 63 How. Pr., 179 ; Whitelegge v. De Witt, 12 Daly, 319.

The taxation of the clerk is sustained, with ten dollars ■costs.  