
    George A. Stearns, Respondent, v. George F. Titus and Others, Appellants.
    First Department,
    June 15, 1906.
    Costs in action for malicious prosecution—defendant represented by-corporation counsel serving without fee.
    As an action for malicious prosecution is an action at law, the costs are not in the discretion of the court, and a successful defendant has a statutory right thereto.
    This is so although the defendant was represented by the corporation counsel, who received no compensation other than his official salary.
    Appeal by the defendants, George F. Titus and others, from an order of the Supreme Court, made at the ISTew York Special Term and entered in the office of the clerk of the county of Yew York on the 21st day of April, 1906, granting the plaintiff’s motion for a retaxation of costs.
    
      Terence Farley, for the appellants.
    
      George A. Stearns, for the respondent.
   McLaughlin, J.:

This action was brought to recover $5,000 damages for malicious prosecution and false imprisonment. Two of the defendants were members of the police force of the city of blew York. All of the defendants interposed separate answers by the corporation counsel of the city'of blew York, which put in issue the material allegations of the complaint.

The issues raised by the answers of the respective defendants came to trial, which resulted in a verdict for the defendants. Subsequently, on notice, the defendants taxed their costs, against plaintiff’s objection, at §118.85, and judgment was entered upon the merits for that amount. Judgment having been entered, plaintiff moved for a retaxation of costs. The motion was based upon an affidavit of the plaintiff to the effect that the defendants appeared in the action by the corporation counsel and were represented at the trial by him or his assistant, Mr. Breckenridge; that the assistant was sworn as a witness at the trial and testified that he. was acting in his official capacity, representing the corporation counsel and was receiving no compensation except his salary for the services rendered. The motion was granted and the clerk was directed to retax the costs and on such retaxation to strike out all of the items taxed except one, a disbursement for §2 for witnesses’ fees and that upon plaintiffs paying such sum the judgment for costs be discharged of record. The defendants appeal from this order.

I am of the opinion the order should be reversed. The action was at law and the defendants having succeeded, lyere entitled to costs as a matter of right. Section 3229 of the Code of Civil Procedure provides that the defendant is entitled to costs, of course, upon the rendering of final judgment in an action specified in the last section (and this is such an action) unless the plaintiff is entitled to costs as therein prescribed. The court had no discretion in the matter. The defendants succeeded upon the merits and they thereupon became, by express provision of the statute, entitled to the costs which the statute gave them. (Ladies’ Union Benevolent Society v. Van Natta, 96 App. Div. 99; Levene v. Hahner, 62 id. 195.) The fact that the defendants were represented On tho trial by the corporation counsel or his assistant (who received no compensation for his services other than his official salary) is, in and of itself, of no importance, because the right to costs is given by the statute and does not in any way depend upon the discretion of tho court as' to whether or not costs should be awarded.

The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion to retax denied, with ten dollars costs.

O’Brien, P. J., Ingraham, Clarke and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order filed.  