Vogt Manufacturing & Coach Lace Co. v. Oettinger — 68 N.Y. St. Rep. 549

Majority

p. 549

Vogt Manufacturing and Coach Lace Company, Resp’t, v. Carl Oettinger, App’lt.

( Supreme Court, General Term, Fifth Department,

Filed June 21, 1895.)

Headnote

Costs — Demurrer—Amount.

Where the court determines that the successful party upon the trial of a demurrer, is entitled to costs, he is entitled to statutory costs, and the court cannot fix any different amount.

Appeal from an order, denying a motion to modify and correct the decision^of the court.

George Williams, for app’lt; Frank M. Goff, for resp’t.

— There was a joiner of an issue of law and an issue of fact in this action, between the same parties. The issue of law was tried and decided while the issue of fact was still undisposed of. Whether the successful party should have costs of the demurrer was a matter in the discretion of the court. Code Civ. Proc. § 3232. The trial court exercised its discretion in favor of the party demurring and decided that he was entitled to costs. The decision was as follows: “Demurrer sustained, and said second cause of action in plaintiff’s complaint dismissed, with ten dollars costs against plaintiff.” The defendant moved the court to correct its decision by striking out the words “ ten dollars.” The motion was denied. The court having determined that the defendant was entitled to costs, he was, we think, entitled to the statutory costs. We do not see upon what theory the court could arbitrarily fix any different amount. It is provided by section 3251 of the Code that costs awarded, to a party to an action must be at the following rates : “For the trial of an issue of law twenty dollars, etc. Van Gelder v. Van Gelder, 13 Hun, 118 .

The order appealed from should be reversed, with $10 costs and disbursements, and the motion for the modification of the decision granted. All concur.