
    Samuel L. Angelo, Plaintiff, v. James Lang et al., Defendants.
    Supreme Court, Special Term, Erie County,
    March 18, 1965.
    
      Adams, Brown, Starrett & Maloney for James Lang, defendant. Ohlin, Damon, Morey, Sawyer & Moot for V. James Catania, defendant.
   Matthew J. Jasen, J.

The plaintiff brought action against James Lang and V. James Catania. The defendant Lang then cross-claimed against defendant 'Catania. A trial of the issues resulted in a verdict in favor of the plaintiff and against both defendants. The cross claim asserted by the defendant Lang against the defendant Catania was dismissed.

The judgment entered in the above-entitled action provided for plaintiff’s recovery as found by the trial jury ‘against both defendants together with costs in the sum of $158. In addition, the judgment provided for costs in the sum of $150 in favor of the defendant Catania against cross claimant Lang.

The defendant Lang now moves to amend said judgment to strike that portion of the judgment which allows costs of $150 to the defendant Catania against the defendant Lang on the grounds that Catania is not entitled to costs as of right' but must apply for an allowance to the Trial Judge, which he failed to do.

Defendant Catania argues that he was a successful party in the cross claim brought by defendant Lang and therefore, pursuant to CPLR 8101, should be entitled to costs as a matter of right.

Prior to the enactment of the CPLR, costs were awarded in the discretion of the court to a successful codefendant on a cross claim against another defendant, where both defendants were held liable. (Flynn v. Patent Scaffolding Co., 265 App. Div. 956; Smith v. City of New York, 26 Misc 2d 106, affd. 12 A D 2d 752.)

CPLR 8101, which sets forth the basic rule for determining how costs are to be awarded in an action or special proceeding, provides for the award of costs to the prevailing litigant as of right in all actions and special proceedings subject to the discretion of the court to deny costs in a particular case. (8 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 8101.03.)

We have here a defendant, Catania, who was the prevailing litigant in the cross claim action brought by codefendant Lang against him, and since the Trial Judge did not exercise his discretion to deny costs to him, as required by CPLR 8101, he is entitled to costs as of right. Motion denied.  