Jones v. Butler

31 N.Y.S. 401, 83 Hun 91, 90 N.Y. Sup. Ct. 91, 63 N.Y. St. Rep. 814, 1 N.Y. Ann. Cas. 278

Opinion

BROWN, P. J.

The questions raised by the demurrers in this action were decided by this general term adversely to the defendant’s contention in Jones v. Publishing Co. (Sup.) 30 N. Y. Supp. 335. We are of the opinion, however, that in the taxation of costs the plaintiff was improperly allowed the item for proceedings before notice of trial. 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. Kniering v. Lennon (Com. Pl. N. Y.) 22 N. Y. Supp. 775; Thompson v. Stanley (Sup.) Id. 897. There is a conflict of authority on this question, but we approve the ruling in the cases cited. The judgment should be affirmed, with costs, with leave to the defendant to amend his answer in 20 days on payment of costs#; and the order denying a retaxation should be reversed, with $10 costs, and the-clerk directed to retax the costs by striking out of the plaintiff’s bill the item of $25 for .proceedings before notice of trial. All concur.