Respondent, which succeeded in dismissing the complaint (Gotham Music Service v. Denton & Haskins Music Publishing Co., 259 N. Y. 86), has been granted an order for restitution of all costs which it paid to plaintiffs during the course of the long litigation between the parties. Costs awarded upon various motions and appeals have been directed to be refunded to defendant. The application for such relief rests upon section 587 of the Civil Practice Act.
The record on the appeal to the Court of Appeals shows that the appeal presented for review the final judgment and also the interlocutory judgment, as amended by an order of this court. Both had to meet with reversal before the complaint could have been dismissed. The judgment on remittitur awarded to defendant the costs in all courts and they have been taxed as part of that judgment in favor of defendant and against plaintiffs.
Respondent, however, had paid to plaintiffs the sum of $326.75 as costs upon the affirmance by this court of the interlocutory judgment (234 App. Div. 736) which, as above stated, was reviewed in the Court of Appeals. Respondent is entitled to the restitution of that amount but not to the other costs which it had paid to plaintiffs.
The order appealed from should be modified so as to provide for restitution in the sum of $326.75, with interest from January 18, 1932, and as modified affirmed, without costs.
Finch, P. J., Martin, O’Malley and Townley, JJ., concur.
Order modified so as to provide that the motion for restitution is granted to the extent of requiring plaintiffs to pay back to the defendant the sum of $326.75, with interest from January 18, 1932, and as so modified affirmed, without costs.