Wright v. Flemming — 25 N.Y. Sup. Ct. 360

Majority

p. 360

GEORGE S. WRIGHT, Respondent, v. ABBIE J. FLEMMING and others, Appellants.

Headnote

Appeal from an order overruling a demurrer — eosts on.

On an appeal taken under subdivision 2 of section 349 of the Code, from an order overruling- a demurrer, the successful party is entitled to tax as costs, under . subdivision 5 of section 307 of the Code, twenty dollars before and forty dollars ' for argument.

Appeal from an order made at Special Term, re-taxing and reducing the costs of the defendants Flemming and Wright.

Alex. Thain, for the appellants.

Foster <& Thompson, for the respondent.

The defendants Flemming and Wright demurred to the complaint of plaintiffs. The demurrer was overruled at Special Term. Upon appeal to the General Term the order overruling the demurrer was reversed with costs. There was no formal judgment entered upon the order overruling the demurrer, but the appeal was taken from the order under section 349 of the late Code. This was a trial of an issue of law. The appeal, which was permitted from the order, did not change its character. Instead of entering a judgment and appealing from that, the Code permitted an appeal from the preliminary order. Upon the appeal iii the General Term the prevailing party was, under subdivision 5 of section 307, entitled to twenty dollars before argument and to forty dollars for argument. The excepted cases, in which such costs were not to be allowed, were cases mentioned in subdivisions 1, 3, 4 and 5 of section 349.

The appeal in the present case was under subdivision 2 of that section, and is, therefore, one of the cases in which the twenty dollars before argument and forty dollars for argument was allowed.

The order should be reversed, with costs and disbursements, and an order granted that the clerk tax the rejected items.

Present — Barkard, P. J., and Gilbert, J.; DykmaN, J., not sitting.

Order reversed, with costs and disbursements, and order granted that clerk tax disputed items.