Plaintiff brought this action against John Gomolski and his wife, Mary K. Gomolski, to recover damages for an alleged libel. The defendants in the action answered separately by the same attorney. Upon the trial at the close of the evidence on motion of counsel for the defendant Mary K. Gomolski a nonsuit was granted in her favor. The case was thereupon submitted to the jury as to the liability of John Gomolski and resulted in a verdict in plaintiff's favor for damages in the amount of $250.
Judgment dismissing the complaint and for costs in favor of Mary K. Gomolski against appellant was entered, and a separate judgment for damages upon a verdict *Page 512 of the jury and for costs in favor of the plaintiff against John Gomolski.
Plaintiff, appellant, thereupon upon due notice obtained an order from the trial justice annulling and vacating the judgment for costs entered against him and in favor of Mary K. Gomolski. Upon appeal therefrom the order was reversed by the Appellate Division and the motion to vacate and annul the judgment denied. Permission to appeal to this court was granted by the Appellate Division and the following question certified:
"Was the defendant Mary K. Gomolski entitled to costs as a matter of right?"
The Appellate Division held in substance that the nonsuit granted in favor of the defendant Mary K. Gomolski established that she was not a tort feasor but a stranger to the transaction for which her husband was sued and that the action should be regarded as having been severed under sections 1204, 1205 of the Code of Civil Procedure though no formal order to that effect was made. My conclusion is that the Appellate Division was in error. The subject of recovery of costs in this action was regulated solely by chapter 21 of the Code of Civil Procedure. By section 3228 of this Code the plaintiff was entitled to costs of course upon the final judgment rendered in his favor against the defendant John Gomolski, the action being one specified in subdivision 3 of that section and the recovery being in excess of the sum of fifty dollars. The action, however, was commenced against two defendants, one of whom, the respondent here, was relieved of liability therein by reason of the ruling of the trial justice in granting her application for a nonsuit; but such determination did not entitle her to costs of course against the plaintiff. Whether or not she was to have an award of costs rested in the discretion of the court. (Code Civ. Pro. § 3229.) Application for the exercise of such discretion was not made to the *Page 513 trial justice and the order vacating the judgment entered in her favor was properly granted.
The order of the Appellate Division should be reversed and the question certified answered in the negative, with costs in this court and in the Appellate Division.
HISCOCK, Ch. J., CHASE, COLLIN, CUDDEBACK, McLAUGHLIN and CRANE, JJ., concur.
Order reversed, etc.