Majority
p. 1123KELLAR v. SHRADY et al. (City Court of New York, General Term. December 29, 1899.) Argued before FITZSIMONS, C. J., and O’DWYER, J.
Headnote
1. Costs—On Demurrer.Defendants, on their demurrer being sustained in a common-law suit, where only an issue of law is presented by the pleadings, are entitled to the costs prescribed by Code Civ. Proe. § 3251, as'matter of right, though plaintiff sues as a public official.
2. Appeal—From Denial op Costs.
Defendants, on the sustaining of their demurrer, may appeal from so much of the order and interlocutory judgment as denies them costs.
Appeal from special term.
Action by John W. Kellar, as commissioner, against George Shrady and another. Defendants’ demurrer was sustained, and from so much of the order and interlocutory judgment as denied them costs, they appeal. Reversed.
Noah & Seeley, for appellants.
J. Whalen, for respondent.
The defendants in this instance, this being a common-law suit, were entitled to costs. Where it is sustained, costs upon a demurrer are absolute,—except where issues of law and fact are joined, and the issue of fact remains undisposed of, the court has no discretion upon the question of awarding costs. Section 3232 of the Code. In this case only an issue of law was presented by the pleadings, so that defendants, when their demurrer was sustained, were entitled to the costs prescribed in section 3251 of the Code,
p. 1124
as a matter of right. They also had the right to appeal from so much of the order and interlocutory judgment as denied them costs. See Tallman v. Bernhard, 75 Hun, 30 , 27 N. Y. Supp. 6 . The fact that plaintiff sues as a public official, in our judgment, does not alter the case.
That part of the order and interlocutory judgment which refuses the defendants costs is reversed, with $10 costs, and disbursements for printing.