Genet v. Pres't of the Delaware & Hudson Canal Co.

This action was determined by the decision of a demurrer to the plaintiff’s complaint in which it was held that this court had no jurisdiction over the cause of action set forth. And the allowance was directed for the reason that the case was difficult and extraordinary. But the court has not considered or decided the case. It has not been either heard or investigated by the court and it cannot therefore be held to be either difficult or extraordinary. Before an additional allowance can be made under the authority of § 3253 of the Code of Civ. Pro., it must be ascertained that the case itself is of that description. It must be determined in some form to be difficult and extraordinary. But in a case over which the court has no jurisdiction that subject cannot regularly be considered at all, and no decision can be made upon it The sole province of the court is to determine the single point of jurisdiction, and when that has been done adversely to the action the merits are beyond its reach, and outside of its consideration.

The right to recover the costs of the defense made by the demurrer depends upon § 3229 of the Code, which in general language provides for the recovery of costs of course, by the defendant, when the plaintiff shall not be' entitled to costs. They result in an action at law, as this action was, directly from the final judgment recovered by the defendant. In this respect they are plainly distinguishable from the additional allowance, which can only be made by further action taken by the court, resulting in the conclusion that the case itself is difficult and extraordinary.And as that could not be reached for want of jurisdiction over the controversy itself, the order should be reversed and the motion -denied.

Van Brunt, P. J., and Brady, J., concur.