99 N.Y.S. 104 | N.Y. App. Div. | 1906
This is a common-law action for work, labor and services per- * formed and materials furnished. The demurrer was upon the ground that the complaint failed to state facts sufficient to constituté a cause of action. The issue of law arising on the demurrer was duly noticed for trial and placed upon the Special Term calendar and tried. The complaint served was clearly insufficient and the-demurrer was sustained, but the court assumed to have discretion with respect to the allowance of costs and allowed only twenty dollars. The question presented is whether the court had any discretion with respect to the allowance of costs, and if not, ivhat are the statutory costs to which the defendant is entitled.
When an issue of fact and an issue of law are joined between the same parties in the same action the ‘court, on deciding the issue of law before the issue of fact has been disposed of, is expressly given dis
In Tallman v. Bernhard (75 Hun, 30 ; 31 Abb. N. C. 84) an . * in terloeutory judgment sustaining a,deinurrer to the entire complaint without costs was_ reversed by the General Term in this department upon the ground that “ There is only one exception to the rule that costs arejabsolute where a demurrer to a complaint in a common-law^ action is sustained, and that-is furnished by section ■ 3232- of the Code which provides that where an issue of law and an , . issue of fact are joined, and the issue of fact remains undisposed of,
We now come to the question as to the amount of costs allowed by section 3251 of -the Code of Civil Procedure in such case. The authorities, with a few exceptions, hold that costs after notice of trial and before trial and of the trial of the issue of law are recoverable; but they are not in harmony with respect to the costs before notice of trial. The appellant contends that the costs before notice of trial are intended as compensation for drawing the pleading, and that unless he is allowed those costs now he never can recover any costs for drawing the demurrer provided the plaintiff accepts the privilege of amending the complaint. Of course if -the plaintiff does not amend, the defendant, on entering final judgment, would be at" liberty.to tax costs before notice of trial; but if the complaint be
Some authorities'hold that the costs allowed to either party before "notice of trial are intended as compensation for drawing the plead-, ing upon which he is successful and that- the defeated party should be obliged to pay the costs of such proceedings as will be vacated as a result of the decision. (Louis v. Empire State Ins. Co. 75 Hun, 364 ; Van Valkenburgh v. Van Schaick, 8 How. Pr. 271 ; Collomb v. Caldwell, 5 id. 336.) In Louis V. Empire State Ins.Co. (supra) a demurrer to the complaint .was overruled and the plaintiff claimed costs before notice of trial. It was held that as his pleadings would stand and he would be entitled ■ to tax these costs later if .'successful, they were, not ■ allowable on demurrer; but the ■ court by way of illustration cited with approval the ease of Adams v. Ward (60 How. Pr. 288), holding that where a demurrer to an answer was sustained, the plaintiff was entitled to recover the costs before notice of trial of the issue of law as compensation for drawing the demurrer. Other cases lay down' the rule of Adams v.. Ward (supra),, that where the demurrer, is-sustained so that the party demurring will be obliged to prepare á new pleading,, he is entitled to costs of proceedings.before notice .of trial. (Collomb v. Caldwell, 5 How. Pr. 336.) Jones v. Butter (83 Hun, 91) is • opposed to this view, but it contains no discussion of the authorities and cites Kneering v. Lennon (3 Misc. Rep. 247 ; 51 N. Y. St. Repr. 907) and Thompson v. Stanley (22 Civ. Proc. Rep. 348). as authority for,the decision. In Kneering v. Lennon (supra) a demurrer to one •of several counterclaims was sustained, with leave to plead over, and only twenty dollars costs of the demurrer were, allowed, The General Term of the Hew York Common Pleas held that as other issues remained to be tried the costs were discretionary under section 3232 of the Code, of Civil Procedure, and that the court only intended to award costs “ upon said demurrer,” 'That decision is clearly in conflict with all the authorities, which hold that when, costs are awarded they are to be governed by the Code of Civil Procedure and include costs of the trial ,of the issue of law and'of all procéedings after notice .and before trial. In. Thompson v. Stanley (supra) a demurrer cd a . . coinplaint was overruled, and as the. plaintiff was not obliged to
In Marsh v. Graham (supra) it was held that only costs after notice arid before trial and of the trial of the issue of law are recoverable either on sustaining .or overruling a demurrer, and Jones v. Butler (supra), which so holds, and Louis v. Empire State Ins. Co. (supra), which, as has been seen, contains a dictum directly opposed,, are cited as authority. The decisions, which hold that costs before notice of trial are not recoverable either on sustaining or overruling a demurrer, fail to discriminate between the two classes of cases, in one of which the pleading of the successful party, which is sustained, stands, and in the other of which it becomes indirectly vacated in consequence of the leave given to the defeated party to plead over, and the authorities holding that the costs before notice of trial are allowed as compensation for drawing the pleading, which thus becomes useless in the future, appear to have been overlooked. Hnless the demurrant who is successful is allowed costs before notice of trial he can never recover costs for drawing the demurrer if the defeated party avails himself of the privilege of amending. ( There is no danger of an unauthorized.recovery of this item of costs twice. If the defeated party does not amend, the successful party on enter ing final judgment on the demurrer could not retax the costs before notice of trial which had already been taxed on the entry of' the interlocutory judgment, and if the defective pleading should be amended, the successful party would be obliged to draw a new pleading, for which he should subsequently recover costs if successful in the action.
If this were an original question we would.decide it in accordance -with our - own views as . herein-expressed, but we feel constrained, to follow Jones v. Butler, Garrett v. Wood, No. 2, and Chase v. Drake (supra), and leave’it to the Court of Appeals- to- decide whether those cases properly construe.the provisions of the Code of Civil Procedure.
Tt follows, therefore, that the interlocutory judgment should be
O’Brien, P. J., Patterson, Ingraham and Clarke, JJ., concurred.
Judgment modified as directed in opinion, and as modified affirmed, with costs to appellant. Settle order on notice.
Code Civ, Proc, chap. 21, tit 2,. art. 1.—[Rep.