Armstrong v. Cummings

Headnote

Oosts awarded on sustaining a demurrer to apart of a pleading — assignability of them.

Costs awarded upon sustaining a demurrer interposed by the plaintiff, to parts of an answer, are not'interlocutory, but final costs, and the plaintiff cannot recover nor assign them until judgment is rendered upon the issues in the action generally.

Appeal from an order setting off certain costs awarded to the plaintiff by the court, on sustaining a demurrer interposed by her to parts of the defendant’s answer in this action, against an equal amount of a judgment for costs,-recovered against her by the defendant in another action in this court.

• The plaintiff commenced, on December 19, 1879, an action in this court against the defendant and Mr. Justice Charles D. Ingersoll, then presiding in the Seventh Judicial District Court, to restrain certain proceedings instituted for the purpose of removing the plaintiff from premises owned by the defendant Cummings, for npn-paymont of rent. That action proceeded to trial, and judgment dismissing the complaint upon the merits, and for $104.52 costs, was entered in favor of the defendants, Cummings and Ingersoll, and against the plaintiff, on July 31, 1880.

On March 10, 1880, after the commencement of the last-mentioned action, but before the trial thereof, plaintiff commenced this present action against the same defendant, William A. Cummings, for $20,000 damages for an alleged slander. The defendant answered the complaint in this action by a general denial, and by setting up various circumstances in mitigation of damages, as well as in justification. The plaintiff demurred to certain defenses of that answer. On June 22, 1880, an order was made sustaining that demurrer, “with costs,” which were taxed by the clerk on June 25, at $65.27? but no judgment has been entered therefor. The defendant duly appealed from that order to this General Term. On July 31 the said order was resettled so as to permit the service of an amended.answer, “ on payment” of the aforesaid costs. The.de

fendant then made this present motion to offset the costs due to the plaintiff under the order of July 31, against an equal amount of the judgment recovered by the defendants in the equity suit on the same day, and to be allowed thereupon to serve an amended answer, and to withdraw the appeal taken from the order sustaining the demurrer. On the argument of the motion, the plaintiff’s attorney produced what purported to be an assignment to one Hertzfield, of the costs awarded to plaintiff on her demurrer, and which purported to have been executed on June 23, 1880.