Majority
p. 597Cornelius H. Tallman, as Executor, etc., Resp’t, v. Adolph Bernhard, App’lt. (Supreme Court, General Term, First Department, Filed January 12, 1894.)
Headnote
Costs—Demurrer.Upon sustaining a demurrer, the demurrant is entitled to costs, except in a single case under § 3333 of the Code.
Appeal from so much of an interlocutory judgment as refused to allow costs on sustaining a demurrer to the complaint.
Carlos C. Alden, for app’lt; James M. Smith, for resp’t.
The court, in sustaining the demurrer, erred in refusing to grant the demurrant costs. There is only one exception to the rule ■ that costs are absolute where a demurrer to a complaint in a common law action is sustained, and that is furnished by § 3232 of the Code, which provides that where an issue of law and an issue of fact are joined, and the issue of fact remains undisposed of, it is in the discretion of the court to deny costs to either party, or award costs, either absolutely, or to abide the event. So much of the order and interlocutory judgment as refuses to allow costs should be reversed, with $10 costs and printing disbursements.