H. G. Vogel Co. v. Wolff — 160 A.D. 831

Majority

p. 831

H. G. Vogel Company, Respondent, v. Harris Wolff, Appellant.

First Department,

February 20, 1914.

Headnote

Costs — affirmance by Court of Appeals of judgment overruling demurrer.

On an affirmance by the Court of Appeals of a judgment of the Appellate Division overruling a demurrer to an answer, which demurrer was heard at Special Term as a contested motion, pursuant to section 976 of the Code of Civil Procedure, the successful party is entitled to tax the costs provided by subdivision 5 of section 3251 of the Code of Civil Procedure, which are thirty dollars for all proceedings before argument, and sixty dollars for the argument.

Appeal by the defendant, Harris Wolff, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 20th day of Hovember, 1913, setting aside and vacating a judgment entered upon an order of this court making the order of the Court of Appeals the order of this court on a remittitur from the Court of Appeals affirming an order and answering in the affirmative a question certified by this court in so far as said order limits the defendant on retaxing his costs to motion costs and disbursements.

Charles Goldzier, for the appellant.

David Bernstein, for the respondent.

The single point presented by the appeal is whether on the affirmance of an order of this court overruling a demurrer interposed by the plaintiff to the answer, which demurrer was brought on for hearing at Special Term as a contested motion pursuant to the provisions of section 916 of the Code of Civil Procedure, such affirmance entitles the successful party to tax full costs as provided by subdivision 5 of section 3251 of the Code of Civil Procedure, or only to ten dollars costs and disbursements. On an appeal to this court from an order, costs are expressly made discretionary by virtue of the provisions of section 3239 of the Code of Civil Procedure, and they may be

p. 832

awarded absolutely or to abide the event. In such case ordinarily ten dollars costs and disbursements are awarded to the successful party. On an appeal to the Court of Appeals, however, costs follow as of course and are governed by the provisions of said section 3251, subdivision 5, of the Code of Civil Procedure, which prescribes the same amount on appeals from orders as from judgments. The amount thus prescribed is thirty dollars for all proceedings before argument and sixty dollars for the argument. (White v. Anthony, 23 N. Y. 164 ; Baylies N. T. & App. [2d ed.] 499, 500.)

It follows that the order, in so far as it is appealed from, should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.