The judges, consulted by Oakley, Ch. J., wer.e all of opinion that the provisions in the R. S. relative to the allowance of costs to defendants, were, no longer in force ; and that as the defendants were plainly not united in interest, and Kettletas had made a separate defence, the allowance of costs to him was governed by § 306 of the Code, and therefore rested entirely in the discretion of the court. Ho judgment for costs could be rendered in his favor, unless upon his application, and when this application should be made, the question whether he was properly made a defendant might be considered.
The plaintiff’s application was therefore denied. Vide Moore v. Westervelt, 3 Sand. S. C. R., p. 762.