Doelger v. O'Rourke — 18 Abb. N. Cas. 457

Majority

p. 457

DOELGER v. O’ROURKE.

N. Y. City Court, Special Term ;

February, 1887.

Headnote

1. ■ Costs upon trial of demurrer.l Upon sustaining plaintiff’s demurrer to a counterclaim pleaded by' defendant, the court maj^ award costs to the plaintiff, notwithstanding the issues of fact remain to be determined.

2. The same; amount. ] An award of costs covers all the costs in the action, including costs before and after notice of argument, and for trial of an issue of law.

Appeal from clerk’s taxation of costs.

The defendant in this action set up a counterclaim for damages for breach of contract, to which plaintiffs demurred. The demurrer was brought to trial at the special term, and, after argument, was sustained, with' costs in favor of the plaintiffs and against the defendant, to be taxed by the clerk of the court.

The defendant appeared upon the taxation, and objected to the taxation of any costs .at all, as well as to the costs as taxed.

The clerk taxed $15 for proceedings before notice of argument, $15 for proceedings after notice of argument, and $20 for the trial of an issue of law, and disbursements, and judgment was entered therefor.

By consent of the attorneys for the respective parties, the questions of law raised before the clerk upon the taxation, to wit, whether at that stage of the action costs could be taxed, and an interlocutory judgment entered, and whether the costs were properly and correctly taxed by the clerk,—were brought on for hearing before the justice holding chambers.

Guggenheimer & Untermyer, for the plaintiff.

John M. Mackay, for the defendant.

This matter is presented to the court upon an appeal by the defendant from the whole taxation of costs herein by the clerk of the court, upon the ground that pending the disposal of the issue of facts no judgment can be entered and no costs can be taxed ; also from the taxation as made by the clerk.

It appears that an issue of law was raised by the plaintiff’s demurrer to that part of defendant’s answer alleging a counterclaim against the plaintiffs. Upon the trial thereof, at special term, the demurrer to the counterclaim was sustained, with costs in favor of the plaintiffs and against the defendant, to bo taxed by the clerk of the court. An interlocutory judgment was thus rendered upon the issue of law.

The awarding of costs absolutely to the prevailing party was within the discretion of the court (Code Civ. Pro. § 3232). An interlocutory judgment must be entered thereon (Code Civ. Pro. § 1021). If the plaintiff fails to enter such judgment, the defendant has the right to compel him to enter judgment in order to perfect his appeal, should he elect so to do. If so, it certainly follows that the plaintiff has the right to do such act, particularly when, in accordance with the plain terms of section 1021 (supra), requiring that the decision of the court upon the trial of the demurrer must direct the final or interlocutory judgment to bo entered thereupon.

The defendant relies upon the dictum of the court in the case of Wilover v. First National Bank of Olean (10 Civ. Pro. R. [Browne] 80,88), to the effect that were the demurrer well taken “ the recovery of costs of the demurrer, and of this appeal, by the plaintiff, must await and depend upon the defeat of the defendant upon the issues of factciting several authorities in support thereof.

I am inclined to think, with respect to the court, that the provisions of the present Oode do not sustain this proposition, and I apprehend that the. correct rule of law is that laid down in Adams v. Ward ( 60 How. Pr. 288 ), that upon the determination of the demurrer the court may'awárd costs

p. 459

to the successful party, although the issue of fact was left to be determined upon trial.

The items of the bill, as taxed, are correct ; the awarding of costs include all the costs in the action involving the trial of the issue of law.

Appeal from the taxation dismissed. The clerk’s taxation sustained.

Cases cited

Adams v. Ward 60 How. Pr. 288 N.Y. Sup. Ct. p. 457