Garrett v. Wood

61 A.D. 294, 70 N.Y.S. 359

Opinion

Pee OtJEiAM:

We agree with the decision below. In Jones v. Butler (83 Hun, 91) this precise question was before the General Term of the second department and the disposal of the question there made meets our entire approval. In the opinion of the presiding justice in that case it is said : “ The judgment is interlocutory and not final. The defendant is allowed to amend his answer. When the case is finally determined, if plaintiff succeeds, he will be entitled to that item. But upon sustaining a demurrer with permission to plead anew, costs should be limited to those allowed for proceedings after notice 'and before trial and a trial fee.” (See, also, Louis v. Empire State Ins. Co., 75 Hun, 364, and Marsh v. Graham, 19 Misc. Rep. 263.)

If the demurrer were interposed to the whole answer, and the defendant should not avail himself of the permission to plead anew, final judgment would then be entered for full costs. To limit the plaintiff, however, to the costs after notice and before trial and to the trial fee as a condition of defendant’s right to plead anew gives to the plaintiff in the theory of the law full compensation for all steps rendered necessary by reason of defendant’s false pleading.

The order should, therefore, be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.