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H. G. Vogel Co. v. Wolfe

145 N.Y.S. 1085 Court N.Y. App. Div. Decision date 1914-02-20 English

Delivered by LAUGHLIN, J.

Contents

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p. 1085
H. G. VOGEL CO. v. WOLFE.
(Supreme Court, Appellate Division, First Department.
February 20, 1914.)

Headnote

Costs (§ 226*)—On Appeal prom Interlocutory Orders. Code Civ. Proe. § 976, provides that an issue of law may be brought on and tried as a contested motion. Section 3239 provides that on an appeal from an interlocutory judgment or an order, costs are in the discretion of the court, and may be awarded absolutely or to abide the event, except where the appeal is from an order granting or refusing a new trial. Section 3251 provides that costs awarded to a party to an action must be at the rates therein specified, and subdivision 5 fixes the rate upon appeal to the Court of Appeals as $30 before argument, and $60' for argument. Held, that while on an appeal from an order overruling a demurrer heard as a contested motion, the costs in the Appellate Division are discretionary, and may be awarded absolutely or to abide the event, costs at the rate specified in section 3251, subd. 5, follow as of course on an appeal to the Court of Appeals.
[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 845, 846; Dec. Dig. § 226.*]
Appeal from Special Term, New York County.
Action by the H. G. Vogel Company against Harris Wolff. From an order setting aside and vacating a judgment entered upon an order of the Appellate Division, making the order of the Court of Appeals
p. 1086
the order of that court on a remittitur from the Court of Appeals, affirming an order and answering in the affirmative a certified question,' in so far as such order limits defendant, on retaxing his costs, to motion costs and disbursements, defendant appeals. Rever'sed and motion to vacate denied.
See, also, 156 App. Div. 584 , 141 N. Y. Supp. 756 ; 157 App. Div. 912 , 142 N. Y. Supp. 1122 .
Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGH-DIN, CLARKE, and SCOTT, JJ.
Charles Goldzier, of New York City, for appellant.
David Bernstein, of New York City, for 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 976 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 $10 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 awarded absolutely or to abide the event. In' such case ordinarily $10 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 $30 for all proceedings before argument and $60 for the argument. White v. Anthony, 23 N. Y. 164 ; Baylies on New Trials and Appeals (2d Ed.) p. 500.

It follows that the order, in so far as it is appealed from, should be reversed, with $10 costs and disbursements, and motion denied with $10 costs. All concur.

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