In this action, originally brought in Justices’ Court, a plea of title was interposed by defendant so that the justice was, ousted of jurisdiction. The plaintiff thereupon began this action in the Supreme Court for the same cause of action and the same defense was interposed. After issue was so joined the cause was placed upon the calendar at the circuit and the plaintiff not ajipearing when it was reached, the complaint was dismissed with costs by reason of such default.
A motion to set aside the judgment for costs in favor of the *243defendant and for a retaxation of costs was made by plaintiff. The costs were readjusted, but the court refused to set aside the judgment. An appeal is taken from such order and the plaintiff contends that he is entitled to costs under section 3235 of the Code of Civil Procedure, because it has not been certified that the title to real property came in question upon the trial. The claim of the plaintiff must be rejected upon reason as well as authority. If sustained it would work a gross injustice upon the defendant in similar cases. The defendant could not compel the trial of the issue of fact and hence he would be punished by a judgment for costs whenever the plaintiff saw fit to suffer a default. No such injustice could have been intended. The precise question, however, is settled by authority in Gates v. Canfield (28 Hun, 12), wherein the learned presiding justice construes the above section of the Code and in precisely such a case holds that the defendant is entitled to recover costs. ¥e accept his views as just and satisfactory. No other question is presented by appellant’s brief.
The order is affirmed, with ten dollars costs and printing disbursements.
Hardin, P. J., and Eollett, J., concurred.Order affirmed, with ten dollars costs and disbursements.