Marsh v. Graham

Chase, J. Costs on demurrer are in the discretion of the court ■where an issue of law and an issue of fact are joined-between the same parties to the same.action, and the issue of .fact remains undisposed of When an interlocutory judgment is rendered upon the issue of law. Code Civ. Pro., § 3232. . "Where an order is made sustaining or overruling a demurrer ■ to the whole complaint in a' common-law action, the successful party is entitled to costs ás a matter of law. Tallman v. Bernhard, 31 Abb. N. C. 84; S. C., 75 Hun, 30. Costs after notice and before trial and. the trial fee are made by reason of the demurrer to" the whole cause of action. Such costs at the statutory rate and disbursements are the costs that the successful party is entitled to as a matter of law. See Jones v. Butler, 83 Hun, 91; Louis v. Empire State Ins. Co., 75 id. 364. Interlocutory costs may be taxed by the' clerk, or the court may direct that they be taxed by a judge. Code Civ. Pro., § 3262.- The order should ¡expressly provide for the taxation of the costs before the clerk of the county in which the action is brought or before a judge designating him. . The practice seems to. .be to have the costs on the decision of a demurrer taxed by the clerk in the usual way. An order is granted. directing that interlocutory judgment be entered overruling the demurrer, with costs to be taxed by the clerk of. Greene county. Defendant to have leave to serve answer within twenty days on payment of such costs. If defendant fails to answer as provided, final judgment may be entered for the relief demanded in the complaint. Ordered accordingly.