These two defendants had judgment in their favor in the-court of appeals affirming a judgment of the general term, and the judgment as to other defendants was reversed, and the demurrer overruled. In thisaffirmance it was directed to be without costs. But these two defendants-claim their costs notwithstanding this direction, for the reason that the action was to enforce what is known as “a legal liability;” but the judgment from which the appeal was taken was affirmed only in part. It previously did include other defendants, and that part only was affirmed which included these two defendants, and, on a partial affirmance by subdivision 2, § 3238; the costs have been subjected to the discretion of the court. The language of therein ittance shows that this view was acted upon in making its decision by the court of appeals, and that it exercised this discretion. The case is very clearly against these defendants, and the order should be affirmed, with $10 costs and - the disbursements. All concur.