Majority
p. 731(88 Hun, 52.) VOGT MANUF’G & COACH LACE CO. v. OETTINGER. (Supreme Court, General Term, Fifth Department. June 21, 1895.) Argued before DWIGHT, P. J., and LEWIS, BRADLEY, and WARD, JJ.
Headnote
Costs—Decision on Demurrer—Amount.Where the court, after ruling on a demurrer, determines that the successful party is entitled to costs, he is entitled to statutory costs (Code Civ. Proc. § 3251), and the court has no power to fix any different amount.
Appeal from Monroe county court.
Action by the Vogt Manufacturing & Coach Lace Company against Carl Oettinger. From an order denying a motion to modify and correct the decision of the court, defendant appeals.
Reversed.
George M. Williams, for appellant.
Frank M. Goff, for respondent
There was a joinder of an issue of law and an issue of fact in this action, between the same parties. The issue of law was tried and decided while the issue of fact was still undisposed of. Whether the successful party should have costs of the demurrer was
p. 732
a matter in the discretion of the court. Code Civ. Proc. § 3232. The trial court exercised its discretion in favor of the party demurring and decided that- he was entitled to costs. The decision was as follows: “Demurrer sustained, and said second cause of action in plaintiff’s complaint dismissed, with ten dollars costs against plaintiff.” The defendant moved the court to correct its decision by striking out the words “ten dollars.” The motion was denied. The court having determined that the defendant was entitled to costs, he was, we think, entitled to the statutory costs. We do not see upon what theory the court could arbitrarily fix any different amount. It is provided by section 3251 of the Code that costs awarded to a party to an action must be at the following rates: “For the trial of an issue of law twenty dollars,” etc. Van Gelder v. Van Gelder, 13 Hun, 118 . The order appealed from should be reversed, with $10 costs and disbursements, and the motion for the modification of the decision grantéd. All concur.