Keller v. Shrady

City of New York Municipal Court

Keller v. Shrady

30 Misc. 833

DecidedDecember 15, 1899

StatusPublished

This text of 30 Misc. 833 (Keller v. Shrady) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Keller v. Shrady, 30 Misc. 833 (N.Y. Super. Ct. 1899).

Pincite

Opinion

Per Curiam.

The defendants in this instance, a common-law action, were entitled to costs.

Where a demurrer is sustained, costs upon it are absolute, except where issues of law and fact are thereby joined and the issue of facts remains undisposed of, the court has no discretion upon the question of awarding costs. Code Civ. Pro., § 3232. In this ease only an issue of law was presented by the pleadings, so that defendants, when their demurrer was sustained, were entitled to costs prescribed in section 3251 of the Code, as a matter of right. They also had the right to appeal from so much of the order and interlocutory judgment as denied them costs. IS Hun, 30. The fact that the plaintiff sues as a public official, in our judgment, does not alter the case.

That part of the order and interlocutory judgment which refuses the defendants’ costs is reversed, with ten dollars costs and disbursements for printing.

Present: Fitzsimons, Ch. J., and O’Dwyer, J.

Order reversed, with ten dollars costs and disbursements for printing.

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Per Curiam.

The defendants in this instance, a common-law action, were entitled to costs.

Where a demurrer is sustained, costs upon it are absolute, except where issues of law and fact are thereby joined and the issue of facts remains undisposed of, the court has no discretion upon the question of awarding costs. Code Civ. Pro., § 3232. In this ease only an issue of law was presented by the pleadings, so that defendants, when their demurrer was sustained, were entitled to costs prescribed in section 3251 of the Code, as a matter of right. They also had the right to appeal from so much of the order and interlocutory judgment as denied them costs. IS Hun, 30. The fact that the plaintiff sues as a public official, in our judgment, does not alter the case.

That part of the order and interlocutory judgment which refuses the defendants’ costs is reversed, with ten dollars costs and disbursements for printing.

Present: Fitzsimons, Ch. J., and O’Dwyer, J.

Order reversed, with ten dollars costs and disbursements for printing.

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Bluebook (online)

30 Misc. 833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keller-v-shrady-nynyccityct-1899.