Louis v. Empire State Insurance

LEWIS, J. The defendant demurred to the plaintiff’s complaint upon' the ground that it failed to state a cause of action. The demurrer was overruled, with costs, but with leave to the defendant to withdraw the demurrer and answer over within 20 days upon the payment of costs, and, in case of his failure so to do, plaintiff was at liberty to enter final judgment for the relief demanded in his complaint. Plaintiff presented to the clerk for taxation a full bill of costs, including the items of $25 before notice of trial, $1 for serving summons and complaint, and 63 cents for the sheriff’s fees on execution. These items mentioned the clerk refused to tax, and the plaintiff moved the special term for an order directing the clerk to tax said items. His motion was denied, and, from the order denying the motion, plaintiff appealed to this court. It was an interlocutory judgment the plaintiff was to enter upon the decision overruling the defendant’s demurrer. The $25 costs before notice of trial he will be entitled to tax when he comes to enter his final judgment. The $25 before notice'of trial is for preparing the complaint. The complaint being held to be good, it is not necessary to redraw it. The defendant should be required to pay the costs of such proceedings as by the operation of the order overruling his demurrer will be vacated. The plaintiff was obliged to prepare for the argument of the demurrer; therefore, he was entitled to costs after notice and before trial; but nothing that he had done before noticing the case for trial was in any way vacated by the judgment overruling the demurrer. The weight of authority seems to sustain this rule. Kniering v. Lennon, (Com. Pl. N. Y.) 22 N. Y. Supp. 775; Skinner v. White, 69 Hun, 127, 23 N. Y. Supp. 384; Edson v. Dillaye, 8 How. Pr. 273; Phipps v. Van Cott, 15 How. Pr. 110; Crary v. Norwood, 5 Abb. Pr, 219; Anon., 3 Sandf. 756. In Adams v. Ward, 60 How. Pr. 288, the plaintiff demurred to the answer. His demurrer was sustained, and it was very properly held that he was entitled to costs before notice of trial, as compensation for drawing the pleading. The order appealed from should be affirmed, with $10 costs and disbursements of the appeal. All concur.