13 Abb. Pr. 185 | N.Y. Sup. Ct. | 1861
—A demurrer was interposed by plaintiff to one of two defences contained in the answer, and the demurrer sustained with costs. Motion is now made for a.precept to issue for the costs, or for an order directing the costs to be paid, and for final judgment in case of default in payment, with costs of motion, and for an order directing the issue of fact to be placed in the calendar for trial at its proper place according to its date.
“1. When the substantial cause of action was the same in each issue, plaintiff shall recover costs on the issues found for him, and shall not be -liable to defendant for the- costs of the' issues found for such defendant.
“2. When there are two or .more distinct causes of action in . separate counts, the -plaintiff shall recover costs on those issues which were found for him, and the defendant on those found for him.
“ Sec. 27. If judgment be rendered for defendant on the whole record, the costs- of -the issues which may have been found for plaintiff shall not be allowed to either party.” ■ It will thus be seen that, whether at common law or under the Revised Statutes, the costs following the decision of one of several issues were always dependent on the final determination of the action. " Being thus dependent, they were not interlocutory; but were ' the final costs to be entered in the judgment for the plaintiff, or defendant, or neither, after all the issues had been disposed of, according to the result. The costs in question, then, being those following the determination of an issue,—for a demurrer to one defence creates an issue,—were not, under the law as it stood prior to the- Code, interlocutory costs. Indeed,: under the then existing law the plaintiff would not be entitled to those costs unless he recovered upon the whole record.
Has the Code made any alteration % I do not perceive that it has. n If the plaintiff-is entitled-at. all to these costs under the ■Code,-irrespective, of what may be -the .result-of the other issues, it.must be on the ground that.he is the,prevailing party on the . judgment- (see §- 303) as to- one of the issues. . Taking this .ground, however, it necessarily follows that these costs must be final -costs,-because .they are only-allowed on the .theory that plaintiff .being entitled, to a final judgment on one.issue, is, as to that, the prevailing party on the judgment to be entered, and entitled when-j udgmentds entered to have it entered in his favor,
Motion denied, with $10 costs. • "