11 How. Pr. 251 | N.Y. Sup. Ct. | 1855
The answer of the defendant in this case, though quite informal, contains three distinct defences. At the time the answer was put in, a demurrer to an answer was authorized, and the plaintiff accordingly demurred to the second defence. The case was thus put in readiness for a trial upon issues of fact formed by the first and third defences, and an issue of law formed by the demurrer. The issue of law alone was tried. The decision was in favor of the defendant. The condition annexed to the decision was not accepted by the plaintiff, and the defendant became entitled to judgment upon the issue of law, unless the decision should be reversed upon appeal. The amount of the costs upon the demurrer having been fixed by the agreement of the attorneys, |he defendant, without reference to the issues of fact remaining undisposed of, undertook to perfect a judgment in the action for the costs upon the issue of law. This he could not regularly do. A judgment is defined to be “ a final determination of the rights of the parties.” Such.“ final determination ” could not be made, so long as there were issues of fact between the parties which had not been tried. The judgment entered upon the decision of the demurrer, amounted to nothing more than an order of the court overruling the demurrer, and declaring the right of the defendant to judgment upon that issue. But for the amendment of the 349th section of the Code, adopted in 1852, a review of the decision upon appeal could not have been had, until after all the issues'had been disposed of and final judgment perfected. That amendment authorized an appeal before judgment.
Both parties have erred in their practice : the defendant, in perfecting judgment upon the issue of law, when several issues of fact remained upon the record undisposed of; and the plaintiff, by appealing from the decision upon the demurrer as a judgment, and not as an order. But, though the appeal was, in form, an appeal from a judgment, I can see ho objection to giving effect to the decision of the general term upon such appeal, as an appeal under the second subdivision of the 349th section of the Code.
But as the decision of the demurrer is evidently fatal to the plaintiff’s action, and no motion has been made to set aside the judgment as- having been prematurely entered, I proceed to consider the question of costs presented by this motion.
Regarding the appeal as really an appeal under the 349th section of the Code, though in form an appeal from a judgment, ' the case is brought directly within the decision in Van Schaick agt. Winne, (8 How. 5,) and the defendant, instead of taxing costs as upon an appeal from a judgment, should have taxed his costs as upon the trial of an issue of law. Then he would have been allowed twelve dollars for the trial of the issue of law before the general term, inst ead of fifteen dollars before argument, and thirty dollars upon the argument of the appeal. Thirty-three dollars must, therefore, be deducted from the costs as taxed.
Neither party should have costs upon this motion.
