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Kniering v. Lennon

22 N.Y.S. 775 Court N.Y.C.P. Decision date 1893-04-03 English

Delivered by PRYOR, J.

Contents

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p. 775
KNIERING et al. v. LENNON.
(Common Pleas of New York City and County, General Term.
April 3, 1893.)

Headnote

Costs—On Demurrer.
On an' order sustaining a demurrer to one of several counterclaims, plaintiff is not entitled to recover costs as on a litigation and disposition of all the issues, but he is entitled to only $20, trial fee, on the determination of the single issue involved.
Appeal from special term.
Action by Conrad Kniering and another against William F. Lennon on a plumber’s bill. Plaintiffs’ demurrer to one of several counterclaims was sustained. The clerk taxed plaintiffs’ costs at $20, and plaintiffs appealed to the special term. From an order confirming the clerk’s taxation, plaintiffs appeal.
Affirmed.
Argued before BISCHOFF and PRYOR, JJ.
Henry Wehle, for appellants.
Thomas C. Ennever, for respondent.

To a complaint on a plumber’s bill, the defendant interposed an answer with several defenses and counterclaims. To one of the counterclaims the plaintiff demurred, and the demurrer was sustained, with leave to the defendant “to amend his answer * * * upon payment of the costs herein upon said demurrer.” The plaintiff presented a bill of costs, amounting, with disbursements, to $60.05. The disbursements being paid, the clerk taxed the costs at “$20, issue of law.” Upon appeal from the clerk’s taxation, it was confirmed, and we are to determine whether the order at special term be correct. The cause is on the calendar for trial of the issues surviving the decision of the demurrer. The ruling of the

p. 776
clerk was right. The successful party is entitled to full costs only on the final determination of the action; otherwise, he might recover such costs twice over. Here is but an interlocutory order; and, as it disposes of only one of several defenses, the plaintiff should not recover costs as upon a litigation and disposition of all the issues. Upon the decision of the demurrer, he may claim only $20, trial fee, upon the determination of the single issue involved. Indeed. the allowance of any costs on sustaining the demurrer was discretionary, (Code, § 3232;) and it is apparent, from the terms of the order, that the court intended to award costs only “upon said demurrer.” If there be a diversity of adjudication on the point, the weight of authority is against the contention of appellant.

Order affirmed, with costs and disbursements.