Olifers v. Belmont

33 N.Y.S. 623, 67 N.Y. St. Rep. 329

Opinion

G-IEGEBICH, J.

Where a demurrer to an entire complaint in a common-law action is sustained, the right of the defendant to costs is absolute (Tallman v. Bernhard, 75 Hun, 30, 27 N. Y. Supp. 6); and in actions at law, where all of the defendants have succeeded upon the trial, those not united in interest, who have appeared by different attorneys, are entitled to costs of course and as a right (Railway Co. v. Burkard, 40 Hun, 626; Lane v. Van Orden, 11 Abb. N. C. 228, 63 How. Pr. 237). I do not, therefore, think I have any power to direct that only one bill of costs be allowed. Besides, I doubt if such power ought, if it existed, to be exercised in the present case, when the defendants Belmont and Chandler appeared by separate attorneys, who both submitted elaborate briefs. While I do not consider it necessary, under the provisions of the Code” of Civil Procedure relative to decisions upon demurrers, viz. sections 1010 and 1021, for the court to make separate and formal conclusions of law (2 Rum. Prac. p. 234), as distinguished from a simple statement indicating the disposition made of the demurrer, I see no objection to such a practice, although it is unusual, and accordingly sign the decisions as proposed by the respective defendants, Belmont and Chandler.