Palito v. New York State Railways
New York County Courts
Demurrer under the 8th paragraph of section 488 óf the Code, to the plaintiff’s complaint having been made herein, same was brought on for argument at a motion term of this court, and was overruled. Thereupon the plaintiff prepared findings, interlocutory judgments, etc., and procured the taxation of a bill of costs containing the usual items of costs after notice and before trial, and a trial fee of an issue of law.
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Demurrer under the 8th paragraph of section 488 óf the Code, to the plaintiff’s complaint having been made herein, same was brought on for argument at a motion term of this court, and was overruled. Thereupon the plaintiff prepared findings, interlocutory judgments, etc., and procured the taxation of a bill of costs containing the usual items of costs after notice and before trial, and a trial fee of an issue of law. Plaintiff comes here on a motion to review this taxation, claiming that motion costs only should have been awarded.
1Opinion of the CourtHazard, J.
There are now three methods for the disposition of a demurrer. Kramer v. Barth, 79 Misc. Rep. 80. These are stated to be: First, the trial of an issue of law before a judge at- a term without a jury, followed by findings and judgment; second, the trial at any term under Code section 976 “ as a contested motion;” and third, a motion for judgment on the pleadings, under Code section 547.
It is not entirely clear what is meant by all this; and rather numerous decisions bearing more or less on the question do not seem to clear up the difficulties. The serving of a demurrer raises an issue of law.…
2Cases cited7 opinions
- National Park Bank v. BillingsAppellate Division of the Supreme Court of the State of New York · 1911
- The National Park Bank of New York v. . BillingsNew York Court of Appeals · 1911
- People v. Bleecker Street & Fulton Ferry RailroadNew York Supreme Court · 1910
- Kramer v. BarthAppellate Terms of the Supreme Court of New York · 1913
- Singer Manufacturing Co. v. Granite Spring Water Co.New York Supreme Court · 1910
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