Richards v. Cook

1 E.D. Smith 386

• Court: New York Court of Common Pleas
• Decided: April 15, 1852
• Status: Published

Opinion

By the Court. Woodruff, J.

The endorsement upon the papers in this cause, so far as it relates to the question of costs, was made without adverting to the change made in the sixth subdivision of the 307th section, by the act of 1851.

Now, by the terms of that subdivision, the costs on appeal are fixed at $45, in all cases, except appeals from an order on a non-enumerated motion.

Under the former practice, a demurrer never was a non-enumerated, motion.

By the code, sec. 249, a demurrer raises an issue of law to be tried by the court.

By rule 30th of the supreme court, (in force when the act of 1851 was passed,) an issue of law is an enumerated motion, as it always was before the code, and a demurrer to pleading is so declared in both rules, 30 and 31.

An appeal, therefore, from the determination of an isSue of law, (i. e., from the decision of the court upon a demurrer,) is not an appeal from a non-enumerated motion, and the party prevailing is entitled to the full costs of an appeal.

Order modified accordingly.