Vogt Manufacturing & Coach Lace Co. v. Oettinger — 95 N.Y. Sup. Ct. 52

Majority

p. 52

The Vogt Manufacturing and Coach Lace Company, Respondent, v. Carl Oettinger, Appellant.

Headnote

Costs upon an issue of law, discretionary— their amount.

Where an issue of fact and an issue of law. are joined between the same parties to the same action, and the issue of fact remains undisposed of, hut the issue of law is decided, costs are allowable in the discretion of the court; but, if awarded, their amount is governed by the provision of section 8251 of the Code of Civil Procedure as follows: “For the trial of an issue of law twenty dollars.”

p. 53

Appeal by the defendant, Carl Oettinger, from an order of tbe County Court of Monroe county, entered in the office of the clerk of Monroe county on the 21st day of December, 1894, denying his motion for an order amending a decision upon a demurrer by striking from it “ $10.00” and causing it to read, “ Demurrer sustained and said second cause of action in plaintiff’s complaint dismissed, with costs of demurrer against plaintiff to be taxed by the clerk of this court.”

George M. Williams, for the appellant.

Frcrnk M. Goff, for the respondent.

There was a joinder 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. (§ 3232, Code Civ. Proc.)

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 $10.00 costs against plaintiff.” The defendant moved the court to correct its decision by striking out the words “$10.00;” 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 ;-ates : “ 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 ten dollars costs and disbursements, and the motion for the modification of the decision granted.

Dwight, P. J., Bradley and Ward, JJ., concurred.

Ordered reversed, with ten dollars costs and disbursements, and defendant’s motion to modify the decision granted. •