Great Northern Moulding Co. v. Bonewur — 128 A.D. 101

Majority

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Great Northern Moulding Company, Respondent, v. Solomon Bonewur, Appellant.

(No. 1.)

Second Department,

October 9, 1908.

Headnote

Appeal — interlocutory orders of Municipal Court denying costs on demurrer — proper costs.

There is no appeal from interlocutory orders of the Municipal Court of the city of New York refusing to allow costs on sustaining a demurrer and refusing to tax the same.

Under section 384 of the Municipal Court Act, where final judgment is rendered sustaining a demurrer without leave to plead over, or where such leave being granted the defeated party does not avail himself thereof, the costs are the same as upon a default. Where leave to plead over is granted the Municipal Court may in its discretion award costs not to exceed ten dollars as a condition for the favor.

Appeal by the defendant, Solomon Bonewur, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff.

Herman J. Rubenstein, for the appellant.

Martin C. Ansorge, for the respondent.

The defendant appellant demurred to the plaintiff’s complaint in the Municipal Court; his demurrer was sustained, with leave to plead over, without costs; he then moved to direct the clerk to tax

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costs and he now appeals from that part of the order on the decision of the demurrer which refuses to award him costs, and also from the order denying Ms motion to tax costs in favor of the defendant on sustaining the demurrer to the complaint.

So far there has been no judgment determining the rights of the parties' in favor of either the plaintiff or defendant in this easel On- December 28, 1907, defendant’s demurrer was sustained, without costs, conceding to the plaintiff the privilege of pleading over on or before December 31, 1907. It did not plead over, and although the case was set down for trial on January 2, 1908, at which time the defendant might have had judgment against the plaintiff dismissing the complaint, because the plaintiff had not taken advantage of' the privilege given to it by the'court to file a pleading upon which he might be entitled to require the defendant to join issue, yet nothing took place on that day and the complaint was. not dismissed, and, hence, there has been no judgment in the case.

In the first place I do not think either of the orders is appeal-able— the order refusing to tax costs or that part of the order sustaining the demurrer which refuses to allow costs. Tlie only sections of the Municipal Court Act providing for appeals from ■orders are sections 257 and 310. (See Laws of 1902, chap. 580, § 257; Id., § 310, as amd. by Laws of 1907, chap. 664.) Neither of these sections authorizes an appeal from an interlocutory order.

(Nolte v. Seymour, 127 App. Div. 178 .)

On the merits of the appeal I think the respondent is right. Section 334 of the Municipal Court Act provides : “ Where a judgment is rendered on the trial of a demurrer, the prevailing party shall recover the same costs as if the judgment had been in his favor, upon the default in the same action. Otherwise costs shall not exceed ten dollars in the discretion of the justice, as a condition, for leave to plead-over.” This means that where a judgment is rendered in the Municipal Oóurt (and, of course, that means final judgment,, for there is no provision for interlocutory judgments) as the result of the'trial of a demurrer and without the trial of issues of fact, costs must be as upon a default; or to put it in another way, where leave to plead over.is not granted, in which case judgment must follow the decision of the demurrer as of course, or

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where the defeated party upon the demurrer does not avail himself of the privilege of pleading over, in which case judgment must pass as if leave to plead over had not been granted, in such cases costs are. as upon a default. The last sentence of the section means that where leave to plead over is granted, the Municipal Court may, in its discretion, award costs not to exceed ten dollars as a condition for the favor. In this view, both the order which sustained the demurrer, erroneously called a judgment, and the order denying the defendant’s motion to tax costs were right.

The appeal must be dismissed, with costs.

Woodward, Jenks, Gaynor and Miller, JJ., concurred.

Appeal dismissed, with costs,