in the discretion of the court, and may be awarded to the prevailing party. The judgment rendered in such an action shall include the amount of such costs and specify to whom and by whom the costs are to be paid. If such action is brought in a court not of record, they shall be the same as allowed in civil actions in such court. The expenses incurred in serving the summons by publication may be added to the amount of costs now allowed in such court."

It has been held that the discretion given the court by this section in the matter of awarding costs, extends to three matters:

(1). The person to whom the costs should be paid. (2). The person by whom the costs shall be paid. (3). The amount of costs.

The discretion given is generally equitably exercised, consideration being given to the conduct of the parties to the litigation, the difficulty of the proof and their success. Salerno v. Vogt, 138 N. Y. Supp. 664, 78 Misc. 64.

In that case the court reviews some of the authorities as follows:

Harvey v. Brewer, 82 A. D. 589, 81 N. Y. Supp. 846, seems to hold "more or less inferentially that the prevailing party is entitled to costs, and apparently the usual foreclosure costs were awarded. Numerous other cases contain rulings upon the subject of costs, but do not make the point in question as to their amount clear.

It was said in Ottman v. Schenectady Co-operative Realty Co., 119 A. D. 737, 104 N. Y. Supp. 137, that where the owner does not litigate anything, it is inequitable to compel him to pay costs. In Condon v. Church of St. Augustine, 112 A. D. 168, 98 N. Y. Supp. 253, it was said that, if it is regarded as equitable, costs may be charged against the plaintiff. In Valk v. McKiege, 16 N. Y. Supp. 741, it was held that, where the defendant owner had made general denial and not succeeded, it is proper to allow costs against him.

And in Holler v. Apa, 18 N. Y. Supp. 588, it was held that costs may be awarded against an owner in default. And in Kenney v. Apgar, 93 N. Y. 539, it was held that such costs may be in excess of the amount due the contractor.

In Carney v. Reilly, 18 Misc. 11, 40 N. Y. Supp. 1123, the court said that a plaintiff who recovers is not entitled to any costs as a matter of right. The award is wholly within the discretion of the court to make or withhold. In Faville v. Hadcock, 39 Misc. 397, 80 N. Y. Supp. 23, it was held that the provisions of § 3228, subdivision 4, of the Code, do not apply to an action to foreclose a mechanic's lien in which equitable relief is sought."

In Ottman v. Schenectady Co-operative Realty Co., 104 N. Y. Supp. 137, 119 A. D. 736, the owner litigated nothing, but admitted liability and offered to pay the amount due on the contract according to the direction. of the court. Therefore the court said it would have been inequitable under the circumstances to charge the owner with costs. And likewise where a defendant lienor takes no active part except to make proof of his lien or to observe some other formality he should not as a general rule be awarded costs.

Where different claimants in a suit fail to sustain their liens or to recover personal judgments, costs may be awarded against all of them, but the owner is entitled to but one bill of costs and not a separate bill against each unsuccessful claimant. Wolff v. Schaefer, 93 N. Y. Supp. 184, 103 A. D. 567.

Likewise a separate bill of costs may be awarded to each defendant. McChesney v. City of Syracuse, 27 N. Y. Supp. 508, 75 Hun 503.

See also Atlas Iron Co. v. Ferguson, 26 N. Y. Supp. 1119, 75 Hun 637, affirmed 148 N. Y. 740; Faville v. Hadcock, 39 Misc. 397, 80 N. Y. Supp. 23; Newman

Lumber Co. v. Wemple, 56 Misc. 182, 107 N. Y. Supp. 327.

The plaintiff in an action to foreclose a mechanic's lien is entitled to an extra allowance under § 3252 of the Code of Civil Procedure, since by § 43 of the Lien Law the provisions of the Code of Civil Procedure relating to actions for the foreclosure of mortgages upon real property apply to actions in a court of record to enforce mechanic's liens on real property. McLaughlin v. Mendelson, 144 N. Y. Supp. 1073, 160 A. D. 37. The case of Wright v. Reusens, 15 N. Y. Supp. 504, was decided under a former statute and is not applicable under the present law.

In Horgan v. McKenzie, 17 N. Y. Supp. 174, it was held that an extra allowance may be awarded in an action to foreclose a mechanic's lien under § 3253 of the Code of Civil Procedure.

And in the case of Taylor v. Howard, 145 N. Y. Supp. 324, it was held that where the plaintiff recovers final judgment with costs, he is entitled to recover, in addition to the costs otherwise prescribed, an additional allowance as provided for in § 3253 of the Code of Civil Procedure.

"Motion costs and necessary disbursements are all that can be awarded to the successful party in proceedings to obtain surplus moneys arising from the sale of real property under the foreclosure of a mortgage. No allowance to counsel can be made." American Mtge. Co. v. Butler, 36 Misc. 253, 73 N. Y. Supp. 334. See also Terry v. Fuller, 112 N. Y. Supp. 450, 60 Misc. 562.

The report of a referee should award or deny costs, and if costs are awarded it should designate the party to whom the costs to be taxed are awarded. See § 1022, Code of Civil Procedure. If he does not award costs, they are not taxable, since the allowance or dis

allowance is within his discretion. And the court has no power to allow costs even though the referee's report states that the question of the determination of costs is left to the court. Stevens v. Weiss, 25 Misc. 457, 55 N. Y. Supp. 562.

§ 243. Courts not of record.

STATUTE.

"§ 46. Action in a court not of record.

If an action to enforce a mechanic's lien against real property is brought in a court not of record, it shall be commenced by the personal service upon the owner, anywhere within the state, of a summons and complaint verified in the same manner as a complaint in an action in a court of record. The complaint must set forth substantially the facts contained in the notice of lien, and the substance of the agreement under which the labor was performed or the materials were furnished. The form and contents of the summons shall be the same as provided by the code of civil procedure for the commencement of an action upon a contract in such court. The summons must be returnable not less than twelve or more than twenty days after the date of the summons, or, if service is made by publication, after the day of the last publication of the summons. Service must be made at least eight days before the return day.”

"§ 47. How summons served, when personal service can not be made. If personal service of the summons can not be made upon a defendant in an action in a court not of record, by reason of his absence from the state, or his concealment therein, such service may be made by leaving a copy thereof at his last place of residence and by publishing a copy of the summons once in each of three successive weeks in a newspaper in the city or county where the property is situated."

66

"§ 48. Proceedings on return of summons; answer; judgment by default. At the time and place specified in the summons for the return thereof, in a court not of record, issue must be joined, if both parties appear, by the defendant filing with the justice a verified answer, containing a general denial of each allegation of the complaint, or a specific denial of one or more of the material allegations thereof; or any other matter constituting a defense to the lien or to the claim upon which it is founded. If the defendant fail to appear on the return day, on proof by affidavit of the service of the summons and complaint, judgment may be renedered for the amount claimed, with costs."

"§ 49. Issue, how tried; judgment.

If issue is joined in such action in a court not of record, it must be tried in the same manner as other issues in such court, and judgment entered thereon, which shall be enforced, if for the plaintiff, in the manner provided in the following section. If for the defendant, in the same manner as in an action on contract in such court."

Execution may be issued upon a judgment obtained in an action to enforce a mechanic's lien against real property in a court not of record, which shall direct the officer to sell the title and interest of the owner in the premises, upon which the lien set forth in the complaint existed at the time of the filing of the notice of lien."

"§ 51. Appeals from judgments in courts not of record.

An appeal may be taken from such judgment rendered in a court not of record, according to the provisions of the code of civil procedure, regulating appeals from judgments in actions on contract in such courts.

"§ 52. Transcripts of judgments in courts not of record.

When a judgment is rendered in a court not of record the justice or judge of the court in which it is tried, or other person authorized to furnish transcripts of judgments therein, shall furnish the successful party a transcript thereof, which he may file with the clerk of the county with whom the notice of lien is filed. The filing of such transcript has the same effect as the filing of a transcript of any other judgment rendered in such courts."

The summons in an action in a court not of record may be served anywhere within the state, and must be returnable not less than twelve or more than twenty days after date and must be served at least eight days before the return day. The statute does not require the same particularity in the complaint as in cases in a court of record, but only "substantially the facts contained in the notice of lien and the substance of the agreement under which the labor was performed or the materials were furnished." Hence it has been held a complaint need not allege that there is a balance due from the owner to the contractor, when a subcontractor is the plaintiff. Keavey v. DeRago, 20