Tallman v. Bernhard — 27 N.Y.S. 6

Majority

p. 6

( 75 Hun, 30 ; 31 Abb. N. C. 84 .)

TALLMAN v. BERNHARD.

(Supreme Court, General Term, First Department.

January 12, 1894.)

Headnote

Costs—Sustaining Demurrer.

Where a demurrer is sustained, the demurrant is entitled to costs, unless an issue of law and an issue of fact are joined, and the issue of fact remains undisposed of, in which case, under Code Civil Proc. § 3232, the costs are in the discretion of the court.

Appeal from special term, New York county.

Action by Cornelius H. Tallman, as executor, against Adolph Bernhard. From so much of an interlocutory judgment as refused to allow costs on sustaining a demurrer to the complaint, defendant appeals. Reversed.

p. 7

Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.

Carlos C. Alden, for appellant.

James M. Smith, for respondent.

The court, in sustaining the demurrer, erred in refusing to grant the demurrant costs. There is only one exception to the rule that costs are absolute where a demurrer to a complaint in a common-law action is sustained, and that is furnished by section 3232 of the Code, which provides that where an issue of law and an issue of fact are joined, and the issue of. fact remains undisposed of, it is in the discretion of the court to deny costs to either party, or award costs, either absolutely, or to abide the event. So much of the order and interlocutory judgment as refuses to allow costs should be reversed, with $10 costs and printing disbursements.