Kniering v. Lennon

To a complaint on a plumber’s bill, the defendant, interposed an answer with several defenses and counterclaims. To one of the counterclaims the plaintiff demurred; and the demurrer was sustained, with leave to the defendant “ to amend his answer * * * * upon payment of the costs herein upon said demurrer.” The plaintiff presented a bill of costs, amounting, with disbursements, to sixty dollars and five cents. The disbursements being paid, the clerk taxed the costs at “ twenty dollars, issue of law.” Upon appeal from the clerk’s taxation, it was confirmed ; and we are to determine whether the order at special term be correct.

The cause is on the calendar for trial of the issues surviving the decision of the demurrer.

The ruling of the clerk was right. The successful party is entitled to full costs only on the final determination of the action ; otherwise he might recover such costs twice over. Here is but an interlocutory order; and as it disposes of only one of several defenses, the plaintiff should not recover costs as upon a litigation and disposition of all the issues. Upon the decision of the demurrer he may claim only twenty dollars trial fee upon the determination of the single issue involved. Indeed, the allowance of any costs on sustaining the demurrer was discretionary, Code, § 3232 ; and it is apparent from the terms of the order that the court intended to award costs only “ upon said demurrer.”

If there be a diversity of adjudication on the point, the weight of authority is against the contention of appellant.

Order affirmed, with costs and disbursements.

Bischoff, J., concurs.