Considerant v. Brisbane — 14 N.Y. Super. Ct. 644

Majority

p. 644

Considerant v. Brisbane.

Headnote

When a Special Term order, which overrules a demurrer to the amended complaint, is, on appeal, reversed, and judgment is ordered in favor of the defendant, but leave is given, to the plaintiff, to amend his complaint, on paying the costs of the demurrer at Special Term, to be taxed, the defendant is entitled to a charge of $10, for proceedings before notice of trial, and a like charge, for proceedings after notice and before trial, although the same sum has been once paid, for the latter class of services, on sustaining a demurrer to the original complaint.

(At Special Term,

March 19, 1858,

Bosworth, J.)

Each party moves to correct the clerk’s adjustment of costs.

The General Term reversed an order overruling a demurrer to the amended complaint, and gave judgment for the defendant, with liberty to the plaintiff to amend his complaint, on paying costs of the demurrer at Special Term to be taxed, and $10 costs of appeal: The clerk, in taxing the costs, allowed $10; costs of proceedings after notice of, and before trial, and disallowed a charge of $10, for proceedings before notice of trial, because the same item had been taxed, and paid by the plaintiff, on sustaining a demurrer to the original complaint. The defendant appeals from the disallowance of the item last named, and the plaintiff from the allowance of that first named.

For the labor of examining the amended complaint, and determining the nature of the pleading, to be interposed by way of answer, and of drawing, copying, and serving it, and of other proceedings before notice of trial, it is as just to allow $10 as for performing similar services, in relation

p. 645

to the original complaint. Allowing it, is not paying for the same services twice: The services are, as truly, separate, and different, as if performed in different actions.

For like reasons, the item of $10, for proceedings subsequent to notice of,, and before trial, was properly allowed. As to this item, the taxation is confirmed, and the item of $10, for proceedings before notice of trial, must also be allowed. The rejection of it was erroneous. A different rule may be applicable when there has been but one actual trial, as in Perry v. Livingston, 6 How. Pr. R. 404, and Jackson v. McBurney, id. 408:—In the present case, there have been two actual trials, of issues at law, one upon a demurrer to the original complaint, and the other upon a demurrer to an amended complaint. Both items are allowable.