Opinion
July 7, 1910.
L.E. Warren, for the appellant.
John H. Emmerich, for the respondent.
Action to recover the purchase price of goods sold and delivered. The court denied defendant's motion to dismiss the complaint, made at the close of plaintiff's case, and at the close of the whole case assumed to dismiss the complaint, without costs. The dismissal, in effect, amounted to the direction of a verdict for the defendant. Judgment was entered accordingly, and defendant appeals from so much thereof as adjudged "that the defendant recover no costs of this action."
The right to costs is statutory and depends in the present case on the provisions of sections 3228, subdivision 4, and 3229 of the Code of Civil Procedure. Whether the judgment is upon the merits or not, it is a final one because it terminates the action, and the defendant consequently had an absolute right to costs. ( Murthey v. Burke, 121 App. Div. 400.) The fact that the judgment does not bar a subsequent action for the same cause of action in no wise affects the defendant's right to costs in this action which has terminated in his favor.
The judgment, therefore, should be modified, with costs to the appellant, so as to adjudge that defendant recover the costs of the action to be taxed by the clerk.
INGRAHAM, P.J., CLARKE, SCOTT and MILLER, JJ., concurred.
Judgment modified as directed in opinion, and as modified affirmed, with costs to appellant. Settle order on notice.