Cornelius H. Tallman, Executor, etc., of Jacob B. Tallman, Deceased, Respondent, v. Adolph Bernhard, Appellant.Headnote
Costs on sustaining a demurrer.The only exception to the rule that costs are absolute where a demurrer to a complaint in a common-law action is sustained, is that furnished by section 3332 of the Code of Civil Procedure, .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.
Appeal by the defendant, Adolph Bernhard, from so much of an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 21st day of December, 1893, upon an order made after a trial had upon issues of law at the New York Special Term, as refused to allow costs upon sustaining a demurrer interposed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.
Oarlos O. Alden, for the appellant.
James M. Smith, for the respondent.
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 section 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 tire event.
So much of the order and interlocutory judgment as refuses to allow costs should be reversed, with ten dollars costs and printing disbursements.
Present — YaN BeuNt, P. J., O’BeieN and Paekee, JJ.
Order and interlocutory judgment reversed as, stated in opinion, with ten dollars costs and printing disbursements.