Jones v. Butler — 31 N.Y.S. 401

Majority

p. 401

(83 Hun, 91.]

JONES v. BUTLER.

(Supreme Court, General Term, Second Department.

December 10, 1894.)

Headnote

Costs—Interlocutory Judgment—Proceedings before Notice of Trial.

An item for proceedings before notice of trial will not be allowed on entry of an interlocutory judgment sustaining a demurrer, with permission to plead anew, but the costs in such case will be limited to proceedings after notice and before trial and a trial fee.

Appeal from special term, Kings county.

Action by Merritt A. Jones against- Charles H. Butler to enforce the personal liability of defendant as a stockholder of the New York Advertising Agency, Limited, on the ground that a certificate of the full payment of the capital stock was not filed in the New York county clerk’s office. From an order and interlocutory judgment

p. 402

sustaining the demurrer to portions of the answer, and from an order denying a motion to retax costs, defendant appeals.

Affirmed.

Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.

Geo. C. Holt, for appellant.

Henry L. Brant, for respondent.

The questions raised by the demurrers in this action were decided by this general term adversely to the defendant’s contention in Jones v. Publishing Co. (Sup.) 30 N. Y. Supp. 335 . We are of the opinion, however, that in the taxation of costs the plaintiff was improperly allowed the item for proceedings before notice of trial. The judgment is interlocutory, and not final. The defendant is allowed to amend his answer. When the case is finally determined, if plaintiff succeeds, he will be entitled, to that item; but, upon sustaining a demurrer with permission to plead anew, costs should be limited to those allowed for proceedings after notice and before trial, and a trial fee. Kniering v. Lennon (Com. Pl. N. Y.) 22 N. Y. Supp. 775 ; Thompson v. Stanley (Sup.) Id. 897 . There is a conflict of authority on this question, but we approve the ruling in the cases cited. The judgment should be affirmed, with costs, with leave to the defendant to amend his answer in 20 days on payment of costs#; and the order denying a retaxation should be reversed, with $10 costs, and the-clerk directed to retax the costs by striking out of the plaintiff’s bill the item of $25 for .proceedings before notice of trial. All concur.