Jones v. Butler — 90 N.Y. Sup. Ct. 91

Majority

p. 91

Merritt A. Jones, Respondent, v. Charles H. Butler, Appellant.

Headnote

Interlocutory judgment sustaining a demurrer to an answer — costs allowable.

Upon tlie entering of an interlocutory judgment sustaining a demurrer to an answer, with permission to plead anew, the costs of the plaintiff should he limited to those allowed for proceedings after notice and before trial and a trial fee.

Appeal by the defendant, Charles H. Butler, from an interlocutory judgment of the -Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of March, 1894, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the plaintiff’s demurrer to certain paragraphs in the defendant’s answer, and also from an order made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of February, 1894, sustaining the plaintiff’s demurrer to certain paragraphs in the defendant’s answer, and also from an order made at the Kings County Special Term and entered in said clerk’s office on the 28th day of March, 1894, denying the defendant’s motion to review the taxation of costs or to direct a retaxation of costs on said interlocutory judgment.

Geo. O. Holt, for the appellant.

Henry L. Promt, for the respondent.

The questions raised by the demurrer in this action were decided by this General Term adversely to the defendant’s contention in Jones v. Mail & Express Publishing Company ( 80 N. Y. Supp. 335 ; 80 Hun, 368 ).

"We are of the opinion, however, that in the taxation of costs the plaintiff was improperly 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 ease is 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

p. 92

limited to tliose allowed for proceedings after notice and before trial and a trial fee. (Kniering v. Lennon, 51 N. Y. St. Repr. 907 ; Thompson v. Stanley, 22 N. Y. Civ. Proc. Rep. 348 .)

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.

Dykman, J., concurred; Cullen, J\, not sitting.

Judgment affirmed, with costs, with leave to defendant to amend his answer in twenty days on payment of costs. Order denying retaxation reversed, with ten dollars costs, and clerk directed to retax costs by striking out the item of twenty-five dollars for proceedings before notice of trial.