Tallman v. Bernhard
New York Supreme Court
Appeal from special term, New York county. Action by Cornelius H. Tallman, as executor, against Adolph Bernhard. From so much of an interlocutory judgment as refused to allow costs on sustaining a demurrer to the complaint, defendant appeals. Reversed.
1Per curiam
The court, in sustaining the demurrer, erred in refusing to grant the demurrant costs. There is only one exception to the rule that costs are absolute where a demurrer to a complaint in a common-law action is sustained, and that is furnished by section 3232 of the Code, which provides that where an issue of law and an issue of fact are joined, and the issue of. fact remains undisposed of, it is in the discretion of the court to deny costs to either party, or award costs, either absolutely, or to abide the event. So much of the order and interlocutory judgment as refuses to allow costs should…
2Cited by6 opinions
- de Turckheim v. ThomasAppellate Division of the Supreme Court of the State of New York · 1906
- Marsh v. GrahamNew York Supreme Court · 1897
- Doyle v. W. L. Douglas Shoe Co.Appellate Division of the Supreme Court of the State of New York · 1904
- Hall v. MarvinAppellate Division of the Supreme Court of the State of New York · 1910
- Kellar v. ShradyCity of New York Municipal Court · 1899
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