69 N.Y.S. 816 | N.Y. Sup. Ct. | 1901
The defendant by his answer, among other defenses looking to the defeat of the plaintiffs’ cause of action, set up counterclaims to the two causes of action included in the complaint. To these counterclaims plaintiffs demurred. The demurrers were overruled at Special Term, with costs to the defendant, and leave given to plaintiffs to reply. Erom the interlocutory judgment entered upon this decision plaintiffs appealed to the Appellate Division, where the judgment of the Special Term was reversed, with costs, and the demurrers sustained, with costs. Upon this decision an interlocutory judgment was entered, the costs
“ 1. When the substantial cause of action was the same in each issue, the plaintiff shall recover the costs on those issues which were found for him, and shall not be liable to the defendant for the-costs of the issue which shall be found for the defendant.
“ 2. When there are two or more distinct causes of action, in separate counts, the plaintiff shall recover costs on those issues which are found for him; and the defendant on those which are found in his favor.
“ § 27. If judgment be rendered for the defendant, upon the whole record, the costs of the issues which may have been found for the plaintiff, shall not be allowed to either party.
“ § 28. When judgment shall be rendered in favor of a defendant, upon general demurrer, to one or more counts in a declaration, and the plaintiff shall have judgment on other counts, on demurrer, on verdict or by default, the defendant shall be allowed his costs upon such judgments in his favor.” 2 R. S. 617, §§ 26, 27, 28. It is obvious that both at common law and under the Revised Statutes the award of costs following the determination of one, out of several issues, was always dependent upon the final determination of the action, and was in no sense interlocutory costs, but final costs to be included in the final judgment after all the issues had been disposed of. The Code of Procedure contained no provision similar to those above quoted from the present Code, and it was held that costs upon the sustaining or overruling of a demurrer were-still final and not interlocutory costs, to be provided for in the final judgment. Palmer v. Smedley, 13 Abb. Pr. 185; Mora v. Sun Mutual Ins. Co., id. 304; Bucking v. Hauselt, 9 Hun, 633. The case last cited was decided in January, 1877, after the adoption of the Code of Civil Procedure, but before chapter 21 which includes sections 3232 and 3233 went into effect. Code Civ. Pro., § 3356. It dealt, therefore, with the provisions of the former Code, and must be read with reference to them. In accordance with-those provisions it was held that what was meant by the direction given on the decision of a demurrer, was that when judgment should be finally entered in the action, as a portion of that judgment the relief which the decision upon the demurrer awarded to the prevailing party thereto, should be secured to him. Sections 3232 and 3233 of
Motion granted, with ten dollars costs.