Garrett v. Wood — 61 A.D. 294

Majority

p. 294

Lena Garrett, Appellant, v. Bradford R. Wood, Individually, and as Executor, etc., of Bradford R. Wood, Deceased, and Others, Respondents.

(No. 2.)

Headnote

Costs—where a demurrer is sustained With leave to amend upon payment of costs.

Where a demurrer interposed to one of three defenses contained in an answer is sustained, with leave to the defendant to amend upon payment of costs of the demurrer, the plaintiff is entitled to the costs allowed for proceedings after notice of trial and before trial and a trial fee, but he is not entitled to the costs allowed for proceedings before notice of trial.

Semble, that where the demurrer is interposed to the entire answer, and the ' defendant elects not to amend, final judgment should be entered for the full costs. 1

Appeal by the plaintiff, Lena Garrett, from an order of the Supreme Court, made at the Albany Special Term, bearing date the 11th day of February, 1901, and entered in the office of thé clerk of the county of Albany, denying the plaintiff’s motion for a new taxation of costs.

Plaintiff demurred to one of three defenses. This demurrer was sustained with leave to the defendant to amend upon the payment • of costs of the demurrer. . In those costs as first taxed by the clerk were included costs before notice of trial twenty-five dollars, costs after notice and before trial fifteen dtillars, and trial fee twenty dollars, making in all sixty dollars. Upon retaxation the clerk struck out the item of twenty-five dollars costs before notice of trial and

p. 295

left the costs as taxed at thirty-five dollars. Upon motion to the Special Term for a retaxation, the court held that the costs as finally adjusted by the clerk were properly taxed.

Barnwell Bhett Heyward, for the appellant.

Arthur L. Andrews, for the respondents.

We agree with the decision below. In Jones v. Butler ( 83 Hun, 91 ) this precise question was before the General Term of the second department and the disposal of the question there made meets our entire approval. In the opinion of the presiding justice in that case it is said : “ The judgment is interlocutory and not final. The defendant is allowed to amend his answer. When the case is finally determined, if plaintiff succeeds, he will be entitled to that item. But upon sustaining a demurrer with permission to plead anew, costs should be limited to those allowed for proceedings after notice 'and before trial and a trial fee.” (See, also, Louis v. Empire State Ins. Co., 75 Hun, 364 , and Marsh v. Graham, 19 Misc. Rep. 263 .)

If the demurrer were interposed to the whole answer, and the defendant should not avail himself of the permission to plead anew, final judgment would then be entered for full costs. To limit the plaintiff, however, to the costs after notice and before trial and to the trial fee as a condition of defendant’s right to plead anew gives to the plaintiff in the theory of the law full compensation for all steps rendered necessary by reason of defendant’s false pleading.

The order should, therefore, be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

Cases cited

Marsh v. Graham 19 Misc. Rep. 263 N.Y. Sup. Ct. p. 295