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First National Bank of Plattsburgh v. Bush

47 How. Pr. 78 Court SUPREME COURT. Decision date 1874-04-21 English

Judges Before Hon. J. S. Landon, J.

Delivered by *79 Landon, J.,

Contents

Majority

p. 78
SUPREME COURT.
First National Bank of Plattsburgh agt. John Bush and Nathan Beenan, impleaded, &c.
Schenectady Special Term,
April 21, 1874.

Headnote

Costs—extra allowance.
Where judgment is ordered for plaintiff (by default) on the ground of the friv'olousness of the defendants’ demurrer, the plaintiff is entitled to an extra allowance of costs under section 309 of the Code.
Before Hon. J. S. Landon, J.
The action was brought upon a promissory note, $2,000, made by defendant, Bush, and indorsed by defendant, Beenan. The complaint was drawn under section 162 of the Code. The defendants, Bush and Beenan, demurred upon the ground that the complaint did not state facts sufficient to constitute^ cause of action.
The plaintiff gave notice of application for judgment upon the demurrer, as frivolous under section 247 of the Code.
The defendants did not appear td oppose the application, and no affidavit of good faith or of merits was presented.
Judgment for the plaintiff upon the demurer, with costs, was ordered.
L. W. Holcomb, for the plaintiff,
thereupon moved for a further allowance of costs of five per cent upon amount claimed, under section 309 of the Code, and cited Witherhead agt. Allen ( 28 Barb., 662 ); King agt. Stafford (5 How. Pr. R., 30); S. C. [General Term], 6 id., 127); Fowler agt. Houston (1 C. R., 51); Anonymous (12 How. Pr. R., 317).

J., said there could be no doubt the decision upon the application was a judgment, and that the plaintiff was entitled to a further allowance of costs sufficient to reimburse for the additional trouble and expense occasioned by the interposition of the frivolous demurrer.

Motion granted.