Van Gelder v. Van Gelder , 20 N.Y. Sup. Ct. 118 ( 1878 )

Bookes, J.:

I concur in tbe views expressed in tbe above opinion of my brother Learned, but it may be well to add an observation as to what the practice should now be at Special Term when relief is asked for and given to the unsuccessful party on demurrer. A remark on this subject is deemed necessary to avoid a misunderstanding of the decision (or a misapplication of it) in Hoffman v. Barry (4 N. Y. S. C. [T. & C.], 253). The overruling of a demurrer is, in legal effect, the ordering of judgment on the demurrer against the party demurring, and so an order sustaining a demurrer is a direction for judgment in favor of the party demurring. It is the better practice — indeed it is the true practice — to enter the order inform for judgment in favor of the prevailing party on the issue of law. The form of the order will, too, be the same whether the demurrer be interposed to an entire pleading or to one or more of several causes of action or defenses. The direction so given in form is now probably, under section 1349 of the Code, an interlocutory judgment. Such was the understanding of the codifiers. (See note to section 1349.) The successful party on a demurrer is then, in an action in which costs are given him by law, entitled to full costs, as given on the trial of an issue of law; and, inasmuch as costs are not in the discretion of the court, the right to those costs is absolute. And if relief be granted to the party against whom the interlocutory judgment is directed, it must be on payment of those costs. It follows, that to grant relief to such party on payment of ten dollars costs only, as upon a motion, is improper. My remarks in Hoffman v. Barry must stand explained or perhaps modified and corrected to meet the viéws here expressed. As regards the costs on an appeal from an order for judgment on demurrer, 1 agree with the conclusion of brother Learned, above given, in view of the present provisions of the Code.

In this case both parties have moved for an amendment of the order of the General Term, the defendant by striking out the limitation of costs on the appeal, and the plaintiff by adding a provision for relief against the decision of the court on the demurrer. Both motions should be granted, as directed in the conclusion of the foregoing opinion.

Present- — Learned, P. J., Bookes and Osborn, JJ.

Motion to correct order granted. Motion of plaintiff granted allowing him to reply on payment of the costs of the demurrer and costs of the appeal, and ten dollars costs of the motion, within ten days after service of a-copy of this order.