95 N.Y.S. 1027 | N.Y. App. Div. | 1905
The action was brought in the Supreme Court to recover penalties under the Public Health Law (Laws of 1893., chap. 661, art 11, as amd. by Laws of. 1900, chap. 66J).
Tssues of; law and issues, of fact were . joined in the action, An issue of -law raised by demurrer to one of the defenses set up in the answer has been decided in favor of the plaintiffs^ with posts awarded to the plaintiffs absolutely^ and taxed, leaving the issues of fact
The question here presented is whether interlocutory costs awarded upon an issue of law, where an issue of fact remains undisposed of, stay all proceedings on the part of the party required to pay the same, except to review or vacate the order or. judgment, without further direction of the court, until the payment thereof, the same as costs of a motion.
' Sections 3232 and 3233 of the Code of Civil Procedure provide: “ § 3232. 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, the interlocutory judgment may, in the discretion of the court, deny costs to either party, or award costs to the prevailing party, either absolutely or to abide the event of the trial of the issue of fact. § 3233. Section 779 of this act applies to interlocutory costs, awarded as prescribed in the last section, as if they were costs of a motion.” Section 779 provides that, where costs of a motion are not paid as directed by the order, an execution against the personal property only of the party required to pay the same may be issued, which execution 'shall be in the. same form, as nearly as may be, as an execution upon a judgment, omitting the recitals and directions relating to real property, and all proceedings on the part of the party required to pay the same, except to review or vacate the order, are stayed without further direction of the court, until the payment thereof. . .
In the case of Cassavoy v. Pattison (101 App. Div. 128), upon the authority of which the motion was decided, a final judgment for interlocutory costs awarded .was entered, directing that the defendant have execution for the costs as taxed. The plaintiff moved for a re taxation of Costs and for an order amending the judgment in so far as it directed a final judgment and execution, which in effect permitted a general execution against property, whereas, under section 779 of the Code of Civil Procedure, an exe
■ It seems to us that the language- of these sections is capable of but one interpretation, which is, that where interlocutory costs are awarded, all proceedings on the part of the party required to pay the same' are stayed the same as costs of a motion.
The following are cases which hold that these sections of' the Code of Civil Procedure introduce an entirely new rule as to interlocutory costs. (Bernheimer v. Hartmayer, 34 Misc. Rep. 346 ; Brassington v. Rohrs, 3 id. 258, 262 ; Barnard, P. J., Phipps v. Carman, 26 Hun, 519; Maeder v. Wexler, 43 Misc. Rep. 19.)
All concurred.
. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.