Jones v. Butler — 63 N.Y. St. Rep. 814

Majority

p. 814

Merritt A. Jones, Resp’t, v. Charles H. Butler, App’lt.

(Supreme Court, General Term, Second Department,

Mled December 10, 1894.)

Headnote

Costs—Interlocutory judgment.

Upon entry of interlocutory judgment sustaining a demurrer witli leave to plead anew, the costs will he limited to proceedings after notice and before trial and a trial fee.

Appeal from an order and interlocutory judgment sustaining the demurrer to portion of the answer, and from an order denying a motion to retax costs.

Geo. 0. Holt, for app’lt; Henry L. Brant, for resp’t.

The questions raised by the demurrers in this action were decided by this general term adversely to the defendant’s contention in Jones v. Mail & Ex. Publishing Co., 62 St. Rep. 61 ; 30 N. Y. Supp. 335 . We are of the opinion, however, that in the taxation of costs the plaintiff was properly allowed the item for proceedings before notice of trial. The judgment is interlocutory and not final. The defendant is allowed to amend his answer. When the case if finally determined, if plaintiff succeeds, he will be entitled to that item; but, upon sustaining a demurrer with permission to plead anew, costs should be limited to those allowed for proceedings after notice and before trial, and a trial fee. Kniering v. Lennon, 51 St. Rep. 907 ; 22 N. Y. Supp. 775 ; Thompson v. Stanley, 22 N. Y. Supp. 897 . There is a conflict of authority on this question, but we approve the ruling in the cases cited.

The judgment should be affirmed, with costs, with leave to the defendant to amend his answer in twenty days on payment of costs; and the order denying a retaxation should be reversed, with ten dollars costs, and the clerk directed to retax the costs by striking out of the plaintiff’s bill the item of twenty-five dollars for proceedings before notice of trial.

All concur.