Richards v. Cook — 1 E.D. Smith 386

Majority

p. 386

James N. Richards v. Sarah A. Cook.

Headnote

A demurrer raises an issue of law; and an appeal from the determination of the court thereon, is not an appeal from a non-enumerated motion.

The party prevailing upon such an appeal, is entitled to full costs, namely, $45.

The plaintiff in this action obtained an order, at special term, sustaining his demurrer to the answer. The order was affirmed at general term, by an endorsement upon the papers in suit, of the words, “ with $10 costs.” The plaintiff then moved at the general term, on notice, to modify the direction contained in the endorsement, so as to allow full costs of an appeal,

C. Bainbridge Smith, for the plaintiff.

C. C. Egan, for the defendant.

The endorsement upon the papers in this cause, so far as it relates to the question of costs,

p. 387

was made without adverting to the change made in the sixth subdivision of the 307th section, by the act of 1851.

Now, by the terms of that subdivision, the costs on appeal are fixed at $45, in all cases, except appeals from an order on a non-enumerated motion.

Under the former practice, a demurrer never was a non-enumerated, motion.

By the code, sec. 249, a demurrer raises an issue of law to be tried by the court.

By rule 30th of the supreme court, (in force when the act of 1851 was passed,) an issue of law is an enumerated motion, as it always was before the code, and a demurrer to pleading is so declared in both rules, 30 and 31.

An appeal, therefore, from the determination of an isSue of law, (i. e., from the decision of the court upon a demurrer,) is not an appeal from a non-enumerated motion, and the party prevailing is entitled to the full costs of an appeal.

Order modified accordingly.