91 N.Y.S. 876 | N.Y. App. Div. | 1905
The suit is for slander and the complaint alleges seven separate causes of action. To two of them the defendant demurred, answering as.to the remaining five. The demurrer was overruled at the Special Term, but upon appeal from the interlocutory judgment we reversed the judgment and sustained the demurrer. (See Cassavoy v. Pattison, 93 App. Div. 370.) The order entered upon our decision followed the direction then handed down, and provided that “the interlocutory judgment so appealed from be, and the same is hereby reversed, and demurrer sustained, with costs.” Upon the reversal the clerk taxed both the costs of the trial of the issue of law and the costs of the appeal, and entered a final judgment directing that the defendant have execution for the costs thus taxed. Thereupon the plaintiff applied at Special Term for a retaxation of the costs in order to strike out so much of the bill as related to the trial of the issue of law, and for an amendment of the judgment in so far as it directed that execution issue. The learned justice at Special Term struck out an item of ten dollars allowed for costs before notice of trial, but refused to interfere further with the costs as taxed, and denied the motion to amend the judgment.
So far as the costs are concerned, it is enough to say that we intended to award to the prevailing party upon the appeal the costs
The entry of a final judgment, however, directing the -issue of an execution was improper. We so held in Burnett v. Burnett (86 App. Div. 386) and in Doyle v. Fritz (Id. 515), deciding that where other issues remain- to. be tried the costs on the determination of a demurrer, although they may be absolute1 and not dependent' upon'the final .event, are. not Oollectible until judgment is rendered on the other issues; While the language of sections 3232 and 3233 of .the Code of Civil; Procedure is susceptible of a different interpretation, the history of the legislation, and the litigation relating to-the question support our conclusion. Were it otherwise, we would still deem it proper upon a mere question of practice'which involves no principle and impairs no important substantial, right to follow the uniform authority of nearly a quarter of a-century, since the-sections of the Code of. Civil Procedure referred to went into effect on September 1, 1880. (See Laws of 1880, chap, 178; Code Civ. Proe. § 3356.) : -' ■
At common law the only party entitled to the costs of the trial of an issue of law was the one who. prevailed on the whole issue. (Williams v. Wright, 1 Wend. 277; Wright v. Williams, 2 id. 632; Osborne v. Lawrence, 9 id. 135.) By the Devised Statutes (2 D. S. 617, §§ 26-28) provision was made for costs where several issues were joined in a cause and were found in favor of the dif* ferent litigants, the last section cited providing that •“ when judgement shall be rendered • in favor of a defendant upon general
In order to settle the question' whether costs of a demurrer, where other issues were still to be determined, should be absolute, or should depend upon ultimate success, section 3232 of the Code of Civil Procedure appears to have been framed, re-enacting section 28 of title 1 of chapter 10 of part 3 of the Revised Statutes {supra), as Mr. Throop says in the note referred to, “ with some amendments ; ” and it provides that “ 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.” In this sectidn no suggestion is to be found that the costs, if absolute, should be presently collectible. Section 3233, however, provides that section 779 of the Code of Civil Procedure shall apply to the costs awarded as prescribed in the preceding section as if they were costs of a motion, and inasmuch as motion costs are collectible before final judgment, it is claimed on the respondent’s behalf that the intention was to make the interlocutory posts likewise so collectible.
. The caption of section 3233, referring to the costs in question, is “ how collected,” not when collected; and section 779 provides for a set-off when motion costs previously awarded have not been collected at the time of final judgment, or have been made to abide the event, and final costs are awarded to the adverse party. In this respect the application of .section 779 to the subsequent sections is obvious. ^ Nevertheless, as has been said, the language of sections 3232 and 3233 is broad enough to justify the interpretation that the legislative design was to make the interlocutory costs, if absolute, immediately collectible by execution, in spite of the previously unbroken line of adjudication to the contrary, and we might feel at liberty so to hold were it not for the fact that the subsequent authoritative adjudications have been in harmony with the preceding ones, in recognition of the absence of any evident or declared
These decisions are in harmony with the provisions of section 1221 of the Code of Civil Procedure, to the effect that in an action in which one or more issues of law and one or more issues of fact arise, final judgment can only be taken when all the issues have been tried. They decide, as we did in the two cases first cited in this opinion on the question now under consideration, that costs on the determination of the demurrer may be granted absolutely, but.may not be collected until the trial of other issues not yet disposed of.
It follows that the order appealed from should be modified by granting the plaintiff’s motion to the extent of striking out the provision that the defendant have execution for his costs, and by inserting in lieu thereof a provision that such costs are to be included in the final judgment if rendered in favor of the defendant, and to be set off if uncollected and final judgment is rendered in favor of the plaintiff; and as modified the order should be affirmed, without costs.
Bartlett, Woodward, Jerks and Hooker, JJ., concurred.
Order modified in accordance with opinion by Hirschberg, P. J., and as modified affirmed, without costs;